Corrections: "Sacramento River"; is a waterbody properly known as Keswick Lake; "Spring Creek Reservoir" is not a resrvoir, It is a debris dam.

By virtue of the office of general conservator of the peace throughout the whole kingdom, the High Warden may commit all violators of the peace, or bind them in recognizances to keep it; but other Judges are only so in their own Courts.

sui generis - Real Time Justice

Emphatically saying what the law is, terminating the national emergency;

May 13, 2008 ... High Peak Borough Council was concerned to secure the welfare of the ... Derbyshire Fire and Rescue, Derbyshire County Council, High Peak Borough ... The number of fire exits were in compliance with Fire Regulations . ...

NCP, 40 CFR§300.435(f)(2), states, “A remedy becomes ‘operational and functional' either one year after construction is complete, or when the remedy is determined concurrently by EPA and the State to be functioning properly and is performing as designed, whichever is earlier.

"If the purpose of this statute was to divest the title of the owner of land in this way, It is unconstitutional. . . . It would be a proceeding which condemns without hearing, proceeds without Inquiry, and renders judgment without trial. It would not be due process of law" Alexander v. Gordon, 101 Fed. 91, 98, 41 CCA 228

The sole test of adverse holding under the statute is whether the true owner is actually disseized for the limitation period. "Actual occupancy of land to the exclusion of the true owner, regardless of whether in good faith or bad faith . . . satisfies the calls of the statute. Such adverse possession of part of a tract under color of title, with Intent to claim the whole, in legal effect extends to the boundaries of the tract." Ovier v. Morrison, 142 Wis. 243, 247, 125 NW 449 (per Marshall, J.).

The Mount Diablo Peace and Justice Center, Grandparents for Peace and the Lamorinda Peace and Justice Group joined Mr. Heaton to support the project. Volunteers erected 300 crosses on Veterans Day in 2006, and by Feb. 26, 2007, there were more than 2,000. The site is the property of Louise Clark, 85.

Local Outrage

Bryan Welden of the Lafayette Flag Brigade, a community group that supports United States military members returning from tours of duty, opposes the project, which Mr. Welden called an “ Al Qaeda scoreboard that is very negative, it sends a message that we are being defeated.” Mr. Welden characterized the volunteers as “anti-military, anti-American, Jane Fonda types.”

Secret Attack

Vandals removed the first 15 crosses. Later, Jean Bonadio, a retired Marine sergeant, publicly dismantled the sign at the site that lists the number of deaths. Two mosaic crosses by Connie English, an artist, disappeared in 2007 and were discovered a year later, smashed.

Cemetery Symbols

Service members who were Buddhist, Islamic, Pagan, or Jewish are noted by stakes topped with dharma wheels, crescent moons, pentacles or the Star of David. The hillside also contains tiny crosses, which indicate child victims, and atomic symbols, which mark the deaths of United States service members and Iraqi citizens from depleted uranium.

Steady Visitors

Silent meditation and prayer is held at the crosses the first Sunday of every month at 9:30 a.m. At 10 a.m., volunteers arrive to maintain the site: weeding, repairing and adding new crosses.

Unknown Soldiers

Originally, only Iraq war deaths were included on the hillside. But after parents and friends of service members who died in Afghanistan asked project organizers to commemorate their loved ones, 600 crosses were added. Mr. Heaton said that no one knows exactly how many crosses are currently on the hill.

Lafayette is named after Gilbert du Motier, Marquis de La Fayette, a wealthy French general who fought in the American Revolutionary War, donated financial support and encouraged France's participation.

A version of this article appeared in print on October 24, 2010, on page A31B of the National edition.

“In our view, this is a significant failure in their transparency,” said Neil M. Barofsky, the inspector general, in an interview on Monday.

In early October, the Treasury issued a report predicting that the taxpayers would ultimately lose just $5 billion on their investment in A.I.G., a remarkable outcome, since the insurance company was extended $182 billion in taxpayer money in the early months of its rescue. The prediction of a modest loss, widely reported as A.I.G., the Federal Reserve and the Treasury rushed to complete an exit plan, contrasted with an earlier prediction by the Treasury that the taxpayers would lose $45 billion.

"U.S. Marshall McKeough explained the object of the meeting in a few
pertinent remarks. He said that Mr. Hutchens told him on
yesterday that unless they give up the water in the
creek aforesaid, that he, Hutchens, would take a body of
men and take the water by force of arms and hold the same
until he and his men were whipped off the ground.

His party
as above mentioned claim right of possession of the water, and
are suing for breach of Close and holding over by deceit.

In this dilemma Mr. Arman
calls upon all his fellow-miners and countrymen to assist him in defending his
rights, agreeable to the old miners' laws.

They said that this
was a serious affair, they are willing to defend the old
established miners' laws and the right."

“Whenever the legislators endeavor to take away and destroy the property of the people, . . . they put themselves into a state of war with the people who are thereupon absolved from any further obedience . . . .” Id. 222, at 233 (emphasis added). Locke

[$ 542] 5. Effect of Possession by Tenant. Within the rule that actual possession of part of a tract of land under color of title gives constructive possession to the extent of the boundaries designated in the conveyance, the possession of part of a tract of land by a tenant of the holder of color of title, who has been put into possession under a lease which does not restrict the possession to any definite part of the tract, will give the lessor constructive posses sion coextensive with the boundaries of his deed,* 4 since the possession of the tenant inures to the benefit of the lessor; 35 and it is not material that only a small part of the land is actually occupied. 38 It has also been held in a number of decisions that even though the lease restricts the possession of the tenant to a definite portion of the tract, his possession will, by construction, be extended to the boundaries of the deed under which the lessor claims, 37 provided of course no one else is in actual possession of the balance of the tract. 38 And in other decisions, where the opinion does not show definitely whether the lease contained such a restriction, the rule is broadly otherwise expressed, if one claiming under an assurance of title defining boundaries places a tenant in possession without limiting him to any definite part, the tenant's possession will extend to the landlord's boundaries, although the land actually occupied is but a small part of the whole Bell v. North American Coal, etc Co., 155 Fed. 712, 84 CCA 60.

"Sec. 2319. All valuable mineral deposits in lands belonging
to the United States, both surveyed and unsurveyed, are
hereby declared to be free and open to exploration and purchase,
and the lands in which they are found to occupation
and purchase, by citizens of the United States and those who
have declared their intention to become such, under regulations
prescribed by law, and according to the local customs
or rules of miners in the several mining districts, so far as
the same are applicable and not inconsistent with the laws of
the United States.

"Pursuant to adjournment meeting met at 1 o'clock, were
called to order by the tenant-in-chief, Mr. Hutchens.
Committee reported as follows, having thoroughly investigated the laws
and customs of the miners of Iron Mountain.:

We fully concur in
the opinion that Mr. Arman is fully entitled to all the water from the mines and
in Slickrock Creek, Boulder Creek, Spring Creek, and Flat Creek, except four torn-heads each, which is allowed
for the beds of the streams ; also that the burning of his forest and buildings, pillage of stone, sequestration of ore wastes,
and the destruction of his dam and other property and
the taking of his water from his race by force of arms are
malicious acts, and should not be submitted to by those who
are in favor of law and order.
"On motion, the report was received and the committee
discharged.
"On motion it was 'Resolved, That we assist Mr. Arman
in turning the water into his race and that we sustain him
to the last extremity in keeping it in the race.'
"On motion, the meeting then adjourned for the purpose of
carrying this resolution into effect."

Whether the law is in force at any
given time is for the jury.
Harvey vs. Ryan, 42 Cal. 626.

Rahall isn't doing anything about it. He hasn't done anything about it other than just saying the EPA is just doing their job. That's what he told the Beckley Register-Herald. That's what he said. We've got the clip. Call it what you want, but it's tyranny.”

“It is stunningly cruel for the government to do what it is doing to our people.

Maynard said the EPA has “no business” regulating carbon emissions and water quality.

“We need to change the legislation that gave them the power,” Maynard said. “Take it away from them. We need new leadership from the EPA.”

Maynard said the EPA, and the Obama administration, are wrong in trying to eliminate mountaintop mining.
Maynard said the $787 billion federal stimulus bill passed by Congress was a failure.

“That is money that has been totally squandered and wasted and misspent,” Maynard said. “What has been done with it is shameful. It's really a trillion dollar package now because we've been paying interest on some of it. A lot of that money — even though my opponent denies it — created 6,000 jobs in China.”

§ 358. 2 Ordinary process. § 361. 3. Extraordinary process. Writ of quo minus.-the first process is by writ of quo minus, in order to give the court a jurisdiction over pleas between party and party. 3 In which writ the plaintiff is alleged to be the farmer or debtor, and that the defendant hath done him the injury complained of, quo minus sufficiens existit, (established sufficiently that it is) by which he is the less able, to pay his rent or debt. And upon this the defendant may be arrested as upon a capias from the common pleas.

§ 362. 4. Subsequent proceedings in all courts.-Thus differently do the three courts set out at first, in the commencement of a suit, in order to entitle the two courts to hold plea in subjects' causes, which they were not empowered to do.

§ 353. b. Attachment, upon actions of trespass vi et armis, or for other injuries, which, though not forcible, are yet trespasses against the peace, as deceit and conspiracy; 1 where the violence of the wrong requires a more speedy remedy, and therefore the original writ commands the defendant to be at once attached, without any precedent warning. 1

§ 354. c. Distress.—If, after attachment, the defendant neglects to appear, he not only forfeits this security, but is moreover to be further compelled by writ of distringas^ or distress, infinite; which is a subsequent process issuing from the court of common j leas. commanding the sheriff to distrain the defendant from time to time, and continually afterwards, by taking his goods and the profits of his lands, which are called issues, and which he forfeits if he doth not appear. 1 But the issues may be sold, if the court shall so direct, in order to defray the reasonable costs of the plaintiff.

§ 355. d. Capias ad respondendum.

If, therefore, the defendant being summoned or attached makes default and neglects to appear, or if the sheriff return a nihil, or that the defendant hath nothing whereby he may be summoned, attached or distrained, the capias now usually issues," being a writ commanding the sheriff to take the body of the defendant if he may be found in his bailiwick or county, and him safely to keep, so that he may have him in court on the day of the return, to answer to the plaintiff of a plea of debt, or trespass, etc., as the case may be. 3 This writ, and all others subsequent to the original writ, not issuing out of chancery but from the court into which the original was returnable, and being grounded on what has passed in that court in consequence of the sheriff's return, are called judicial, not original, writs; they issue under the private seal of that court, and not under the great seal of England, and are tested, not in the king's name, but in that of the chief justice only. And these several writs being grounded on the sheriff's return, must respectively bear date the same day on which the writ immediately preceding was returnable.

p Appendix, No. Ill , § 2.

3 A capias ad respondendum, authorizing the arrest of the defendant's person is of limited use in the United States as original process. It is allowed in some jurisdictions by statutory provision in cases of fraud, breach of trust or other gross wrongdoing.

An attachment is similarly authorized against the property of absconding debtors, nonresidents, and other classes of persons specifically designated in the statutes.

§ 356. (1) Capias used in first instance.—This is the regular and orderly method of process. But it is now usual in practice to sue out the capias in the first instance, upon the supposed return of the sheriff; especially if it be suspected that the defendant, upon notice of the action, will abscond, and afterwards a fictitious original is drawn up, with a proper return thereupon, in order to give the proceedings a color of regularity. When this capias is delivered to the sheriff, he by his under-sheriff grants a wan-ant to his inferior officers, or bailiffs, to execute it on the defendant. And, if the sheriff of Oxfordshire (in which county the injury is supposed to be committed and the action is laid) cannot find the defendant in his jurisdiction, he t 283 ! returns that he is not found, non est inventus, in his bailiwick; whereupon another writ issues, called a testatum capias," 1 directed to the sheriff of the county where the defendant is supposed to reside, as of Berkshire, reciting the former writ, and that it is testified, testatum est, that the defendant lurks or wanders in his bailiwick, wherefore he is commanded to take him, as in the former capias. But here also, when the action is brought in one county and the defendant lives in another, it is usual, for saving trouble, time and expense, to make out a testatum capias at the first; supposing not only an original, but also a former capias, to have been granted, which in fact never was. And this fiction, being beneficial to all parties, is readily acquiesced in and is now become the settled practice; being one among many instances to illustrate that maxim of law, that in fictione juris consistit cequitas (all fiction of law is founded in equity).

§ 357. (2) Proceedings in outlawry.—But where a defendant absconds, and the plaintiff would proceed to an outlawry against him, an original writ must then be sued out regularly, and after that a capias. And if the sheriff cannot find the defendant upon the first writ of capias, and returns a non est inventus, there issues out an alias writ, and after that a pluries, to the same effect as the former: 1 only after these words "we command you," this clause is inserted, "as we have formerly," or, "as we have often, commanded you"; sicut alias," or "sicut pluries, j^wcipimus."

i Appendix, No. Ill , § 2. 'Appendix, No. Ill , § 2.

And if a non est inventus is returned upon all of them, then a writ of exigent or exigi facias (that you cause to be required) may be sued out," which requires the sheriff to cause the defendant to bo proclaimed, required or exacted, in five county courts successively, to render himself; and, if he does, then to take him, as in a capitis: but if he does not appear, and is returned quinto exactus (required for the fifth time), he shall then be outlawed by the coroners of the county. Also by statutes 6 Henry VIII, c. 4 (Outlawry, 1514), and 31 Elizabeth , c. 3 (Avoidance of Secret Outlawries, 1588), whether the defendant dwells within the same or another county than that wherein the exigent is sued out, I 884 ! a writ of proclamation 85 shall issue out at the same time with the exigent, commandini: the sheriff of the county, wherein the defendant dwells, to make three proclamations thereof in places the most notorious, and most likely to come to his knowledge, a month before the outlawry shall take place. Such outlawry is putting a man out of the protection of the law, so that he is incapable to bring an action for redress of injuries; and it is also attended with a forfeiture of all one's goods and chattels to the king. And therefore, till some time after the Conquest, no man could be outlawed but for felony; but in Bracton's time, and somewhat earlier, process of outlawry was ordained to lie in all actions for trespasses vi et armis. 1 And since, by a variety of statutes (the same which allow the writ of capias before mentioned), process of outlawry doth lie in divers actions that are merely civil; provided they be commenced by original and not by bill." If after outlawry the defendant appears publicly, he may be arrested by a writ of capias utlagatum T (that you make the outlaw), and committed till the outlawry be reversed. Which reversal may be had by the defendant's appearing personally in court or by attorney*' (though in the king's bench he could not appear by attorney,* till permitted by statute 4 & 5 W. & M., c. 18—Criminal Procedure, 1692), and any plausible cause, however slight, will in general be sufficient to reverse it, it being considered only as a process to compel an appearance. But then the defendant must pay full costs, and put the plaintiff in the same condition as if he had appeared before the writ of cxigi facias was awarded. 4

4 Two things are especially to be noted by the student in connection with this procedure enforced through so many centuries. The first is the tedious forbearance of the law. "Very slowly it turns the screw which brings the pressure to bear upon the defendant. ... If we would understand its patience, we must transport ourselves into an age when steam and electricity had not become ministers of the law, when roads were bad and when no litigant could appoint an attorney until he had appeared in court. Law must be slow in order that it may be fair." Secondly, we must especially observe that no judgment can be given against the absent in a personal action. There is no judgment by default. "One thing our law would not do, the obvious thing. It would exhaust its terrors in the endeavor to make the defendant appear, but it would not give judgment against him until he had appeared, and, if he was obstinate enough to endure imprisonment or outlawry, he could deprive the plaintiff of his remedy. . . . Instead of saying to the defaulter, 'I don't care whether you appear or no,' it sets its will against his will: 'But you shall appear.' To this we may add, that the emergence and dominance of the semicriminal action of trespass prevents men from thinking of our personal actions as mere contests between two private persons. The contumacious defendant has broken the peace, is defying justice and must be crushed. Whether the plaintiff's claim will be satisfied is a secondary question." It required nearly six centuries to correct this primitive misconception.— Perry, Common-law Pleading, \51.

§ 369. Proceedings in an action—III. Pleadings.—Pleadings are the mutual altercations between the plaintiff and defendant.

i Pleadings under the codes.—The adoption of the "code system," in whole or in part, in most American jurisdictions, has established a new system of pleading, to understand which, however, it is necessary to be familiar with the principles' of common-law pleading. The authors of the code felt that common-law pleading consisted largely of allegations of conclusions of law, which did not warn the adverse party of the facts relied upon, and that its usefulness was impaired by the statement of legal fictions, such as that of the loss and finding in trover, and the lease in ejectment. On the other hand, equity pleading had become prolix and artificial, and was rendered cumbersome by the inclusion of details of evidentiary statement.

Accordingly, the codes provide for a complaint or petition, which is the plaintiff's first pleading, and which is required to state in ordinary and concise language the facts constituting his cause of action. The defendant meets this with his answer, which may deny any of the material allegations of the complaint, or allege any new matter constituting a defense. In addition, some of the states provide for a reply, whereby the plaintiff may controvert the affirmative allegations of the answer; but beyond this the pleadings do not extend, except that a demurrer may be interposed by the adverse party to test the legal sufficiency of a pleading. In most of the code states, a defect in the form of allegations cannot be reached by demurrer, but only by a motion to make more definite and certain. In England demurrers have been abolished.

Under the codes, the ultimate facts must be pleaded, as distinguished from conclusions of law, on the one hand, and evidentiary matter on the other. Green v. Palmer, 15 Cal. 411, 76 Am. Dec. 492. For instance, in actions involving the title to real property, the steps in the deraignment of the title are merely evidence by which the ultimate fact of ownership may be established, and should not ordinarily be set out in a pleading. Coryell v. Cain, 16 Cal. plaintiff sets forth his cause of complaint at length," being indeed only an amplification or exposition of the original writ upon which his action is founded, with the additional circumstances of time and place, when and where the injury was committed. But we may remember ed that, in the king's bench, when the defendant is brought into court by bill of Middlesex, upon a supposed trespass, in order to give the court a jurisdiction, the plaintiff may declare in whatever action, or charge him with whatever injury he thinks proper, unless he has held him to bail by a special ac etiam, which the plaintiff is then bound to pursue.

Fictions are sought to be done away with, and truth in pleading secured, not only by requiring that the facts be stated, but also by the additional requirement of the verification of pleadings.

The theory of the code provisions is sometimes prevented from being carried out in practice as it was intended that it should. The "ordinary, concise language - ' becomes a more or less stereotyped legal phraseology. And the method of pleading is influenced to a great extent by history and custom. A priori, there would seem to be as much reason for requiring particularity in stating the details of negligent as of fraudulent conduct. However, lawyers had been accustomed to plead negligence in actions at law only, whereas they had constantly been required to set out in a bill in equity the details and particulars of the fraud upon which they relied. As the result we have under the codes the rule that negligence may be averred generally, but that the facts constituting the fraud must be set out in detail.

Another respect in which the code theory has yielded to legal custom and conservatism is with regard to the use of the common counts. Because of their set form, often giving little indication of the facts of the case, and because they consist largely of conclusions of law, they would seem to be out of harmony with the principles of code pleading; and in a few states, the courts have discountenanced their use. In most code jurisdictions, however, this form of pleading is allowed.

The codes of procedure also provide, in somewhat varying terms, for a more liberal joinder of parties and of causes of action than was permitted at common law.—excerpts of M. E. Harrison.

The have the benefit of a capias to secure the defendant's person, it was the ancient practice, and is therefore still warrantable in the common I 284 ! pleas, to sue out a writ of trespass quare clausum fregit for breaking the plaintiff's close; and when the defendant is once brought in upon this writ, the plaintiff declares in whatever action the nature of his actual injury may require; as an action of covenant, or on the case for breach of contract, or other less forcible transgression: c unless, by holding the defendant to bail on a special ac ctiam, he has bound himself to declare accordingly.

§ 371. a. Venue.—In local actions, where possession of land is to be recovered, or damages for an actual trespass, or for waste,' etc., affecting land, the plaintiff must lay his declaration or declare his injury to have happened in the very county and place that it really did happen; but in transitory actions, for injuries that might have happened anywhere, as debt, detinue, slander and the like, the plaintiff may declare in what county he pleases, and then the trial must be in that county in which the declaration is laid. Though if the defendant will make affidavit that the cause of action, if any, arose not in that but in another county, the court will direct a change of the venue or visne (that is, the vicinia or neighborhood in which the injury is declared to be done), and will oblige the plaintiff to declare in the proper county. For the statutes 6 Richard II, c. 2 (Venue in Actions for Debt, 1382), and 4 Henry IV, c. 18 (Attorneys, 1402). having ordered all writs to be laid in their proper counties, this, as the judges conceived, empowered them to change the venue, if required, and not to insist rigidly on abating the writ; which practice began in the reign of James the First." And this power is discretionally exercised, so as not to cause but prevent a defect of justice. Therefore the court will not change the venue of any of the four northern counties previous to the spring circuit; because there the assizes are holden only once a year, at the time of the summer circuit. And it will sometimes remove the venue from the proper jurisdiction (especially of the narrow and limited kind), upon a suggestion,

duly supported, that a fair and impartial trial cannot be had therein.*

§ 372. b. Counts.—I 29B 1 It is generally usual in actions upon the case to set forth several cases, by different counts in the same declaration, so that if the plaintiff fails in the proof of one he may succeed in another. 2 As, in an action on the case upon an assumpsit for goods sold and delivered, the plaintiff usually counts or declares, first, upon a settled and agreed price between him and the defendant; as that they bargained for twenty pounds: and lest he should fail in the proof of this, he counts likewise upon a 'quantum valebant (as much as they were worth); that the defendant bought other goods, and agreed to pay him so much as they were reasonably worth; and then avers that they were worth other twenty pounds: and so on in three or four different shapes; and at last concludes with declaring that the defendant had refused to fulfill any of these agreements, whereby he is endamaged to such a value. And if he proves the case laid in any one of his counts, though he fails in the rest, he shall recover proportionable damages. This declaration always concludes with these words, "and thereupon he brings suit, etc., inde producit sectam, etc." By which words, suit or secta (a sequendo), were anciently understood the witnesses or followers of the plaintiff.' For in former times the law would not put the defendant to the trouble of answering the charge till the plaintiff had made out at least a probable case. 8 But the actual production of the suit, the secta, or fol

e Stra. 874.—Mylock v. Saladine. Trin. 4 Geo. III. B. B.

t Seld. on Fortesc. c. 21.

B Bract. 400. Flet. 1. 2. c. G.

2 Inconsistent counts in code pleading.—The pleading of the same cause of action in inconsistent counts would seem to be ordinarily incompatible with the code system of pleading, which aims to secure a statement of the actual facts. I'omeroy on Code Remedies, sec. 467. However, where the facts are peculiarly within the knowledge of the adverse party, this method of pleading is allowable, even under the codes. Rueker v. Hall, 105 Cal. 425, 3S Fac. 962. Unless there is, because of some such circumstance, a reasonable doubt of plaintiff's ability to plead the facts safely in one mode only, he will be required to elect between inconsistent counts. Harvey v. Southern Pacific Co., 46 Or. 505, 80 Pac. 1061.—M. E. Harrison.

lowers, is now antiquated, and hath been totally disused, at least ever since the reign of Edward the Third, though the form of it still continues.

§ 373. c. Nonsuit.—At the end of the declaration are added also the plaintiff's common pledges of prosecution, John Doc and Richard Roe, which, as we before observed, 6 are now mere names of form, though formerly they were of use to answer to the king for the amercement of the plaintiff, in case he were nonsuited, barred of his action, or had a verdict and judgment against him, 1 For, if the plaintiff neglects to deliver a declaration for two terms after the defendant appears, or is guilty of other delays or defaults against the rules of law in any subsequent I 28a J stage of the action, he is adjudged not to follow or pursue his remedy as he ought to do, and thereupon a nonsuit, or non prosequitur, is entered; and he said to be nonpros'd. And for thus deserting his complaint, after making a false claim or complaint (pro falso clamore suo), he shall not only pay costs to the defendant, but is liable to be amerced to the king.

§ 374. d. Retraxit.—A retraxit (he hath withdrawn) differs from a nonsuit, in that the one is negative and the other positive: the nonsuit is a default and neglect of the plaintiff, and therefore he is allowed to begin his suit again, upon payment of costs; but a retraxit is an open and voluntary renunciation of his suit, in court, and by this he forever loses his action.

§ 375. e. Discontinuance.—A discontinuance is somewhat similar to a nonsuit, for when a plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day and time to time, as he ought to do, the suit is discontinued, and the defendant is no longer bound to attend; but the plaintiff must begin again, by suing out a new original, usually paying costs to his antagonist. Anciently, by the demise of the king, all suite depending in his courts were at once discontinued, and the plaintiff was obliged to renew the process, by suing out a Eresh writ from the successor, the virtue of the former writ being totally gone, and the defendant no longer bound to attend in con

& See pag. 275.

i 3 Bulstr. 275. 4 Inst. 189.

sequence thereof; but, to prevent the expense as well as delay attending this rule of law, the statute 1 Edward VI, c. 7 (Demise of the Crown, 1547), enacts that by the death of the king no action shall be discontinued, but all proceedings shall stand good as if the same king had been living.

§ 376. 2. Defense.—When the plaintiff hath stated his case in the declaration, it is incumbent on the defendant within a reasonable time to make his defense and to put in a plea, or else the plaintiff will at once recover judgment by default, or nihil dicit of the defendant.

Defense, in its true legal sense, signifies not a justification, protection or guard, which is now its popular signification, but merely an opposing or denial (from the French verb defender) of the truth or validity of the complaint. It is the contestatio litis (the opening of a case before witnesses) of the civilians: a general assertion that the plaintiff hath no ground of action, which assertion is afterwards extended t 297 l and maintained in his plea. For it would be ridiculous to suppose that the defendant comes and defends (or, in the vulgar acceptation, justifies) the force and injury, in one line, and pleads that he is not guilty of the trespass complained of in the next. And therefore, in actions of dower, where the demandant does not count of any injury done, but merely demands her endowment,* and in assizes of land, where also there is no injury alleged, but merely a question of right stated for the determination of the recognitors or jury, the tenant makes no such defense. 1 In writs of entry,TM where no injury is stated in the count, but merely the right of the demandant and the defective title of the tenant, the tenant comes and defends or denies his rights, jus suum, that is (as I understand it, though with a small grammatical inaccuracy), 3 the right of the demandant, the only one expressly mentioned in the pleadings: or else denies his own right to be such as is suggested by the count of the demandant. And in writs of right n the tenant always comes and defends the right of the demand

* Rastal. Entr. 234. » Book II. Append. No. V, 5 2.

i Booth of Beat Actions. 118. » Appendix, No. I, § 5.

3 The grammatical inaccuracy noted by Blackstone is in using suum (his own) for ejus (his).

ant and his seisin, jus prcedicti S. et seisinam ipsiu.t (the right and seisin of the aforesaid S.)° (or else the seisin of his ancestor, upon which he counts, as the case may be), and the demandant may reply that the tenant unjustly defends his, the demandant's, right and the seisin on which he counts." 4 All which is extremely clear, if we understand by defense an opposition or denied, but is otherwise inexplicably difficult. 11

§ 377. a. Defense and denial distinguished.—The courts were formerly very nice and curious with respect to the nature of the defense, so that if no defense was made, though a sufficient plea was pleaded, the plaintiff should recover judgment ; r and therefore the book entitled nova, narraiiones or the new talys* at the end of almost every count, narratio or tale, subjoins such defense as is proper for the defendant to make. For a general defense or denial was not prudent in every situation, since thereby the propriety of the writ, the competency of the plaintiff, and the cognizance of the court were allowed. By defending the force and injury I 898 J the defendant waived all pleas of misnomer; 1 by defending the damages, all exceptions to the person of the plaintiff; and by defending either one or the other when and where it should behoove him, he acknowledged the jurisdiction of the court." But of late

years these niceties have been very deservedly discountenanced." though they still seem to be law, if insisted on. x *

§ 378. b. Claim of cognizance.—Before defense made, if at all, cognizance of the suit must be claimed or demanded; when any person or body corporate hath the franchise, not only of holding pleas within a particular limited jurisdiction, but also of the cognizance of pleas: and that, either without any words exclusive of other courts, which entitles the lord of the franchise, whenever any suit that belongs to his jurisdiction is commenced in the courts at Westminster, to demand the cognizance thereof; or with such exclusive words which also entitle the defendant to plead to the jurisdiction of the court/ Upon this claim of cognizance, if allowed, all proceedings shall cease in the superior court, and the plaintiff is left at liberty to pursue his remedy in the special jurisdiction. As, when a scholar, or other privileged person of the universities of Oxford or Cambridge is impleaded in the courts at Westminster, for any cause of action whatsoever, unless upon a question of freehold.^ In these cases, by the charter of those learned bodies, confirmed by act of parliament, the chancellor or vice-chancellor may put in a claim of cognizance, which, if made in due time and form, and with due proof of the facts alleged, is regularly allowed by the courts.* It must be demanded before full defense is made b or imparlance prayed; for these are a submission to the jurisdiction of the superior court, and the delay is a laches in the lord of the franchise: and it will not be allowed if it occasions a failure of justice," or if an t 2 ") action be brought against

* Formal "defense," either before or in an answer or plea, is now entirely obsolete both in England and this country.— Hammond.

w Salk. 217. Lord Raym. 282.

* Carth. 230. Lord Kaym. 117.

J 2 Lord Eaym. 836. 10 Mod. 126.

« See pag. 83.

» Hardr. 505.

b Bast. Entr. 128, etc

« 2 Ventr. 363.

the person himself who elaims the franchise, unless he hath also a power in such case of making another judge. 4 •

§ 379. c. Imparlance.—After defense made, the defendant must put in his plea. But, before he defends, if the suit is commenced by capias or latitat, without any special original, he is entitled to demand one imparlance* or licentia loqutndi (liberty of speaking) ; and may, before he pleads, have more granted by consent of the court, to see if he can end the matter amicably without further suit, by talking with the plaintiff: a practice which is' supposed to have arisen from a principle of religion, in obedience to tfiat precept of the gospel, "agree with thine adversary quickly, whilst thou art in the way with him." 8 And it may be observed that this gospel precept has a plain reference to the Roman law of the twelve tables, which expressly directed the plaintiff and defendant to make up the matter, while they were in the way, or going to the pnetor;— in via, rem ubi pacunt, orato (where the parties come to terms, let the matter be settled).

§ 380. d. Demand of view.—There are also many other previous steps which may be taken by a defendant before he puts in

* This entire paragraph with the notes was in fifth edition transferred from the close of that succeeding. It is almost superfluous to say that the entire contents of it is obsolete now.— Hammond.

« Hob. 87. Year-Book, M. 8. Hen. VI. 20 (1429). In this latter case the Chancellor of Oxford claimed cognizance of an action of trespass brought against himself; which was disallowed, because he should not be judge in his own cause. The argument used by Serjeant Eolfe, on behalf of the cognizance, is curious and worth transcribing.— Jco vous dirai un fable. En ascun temps fuit un pape, et avoit fait un grand offence, et le cardinals vindrent a luy et disoyent a luy, "peccasti": et il dit, "judica me": et Us disoyent, "non possumus, quia caput es ecclesia; judica tcipsum": et Vapostol' dit, "judico me cremari"; et fuit combustus; et apres fuit un sainct. Jit in ceo cos U fuit son juge demene, et issint n'est pas inconvenient que un home soit juge demene. (I will tell you a story. There was formerly a pope, and he committed a great crime, and the cardinals came to him, and said, "Thou hast sinned"; and he said, "Judge me"; and they answered, "We cannot, for thou art the head of the church; judge thyself"; and the apostle said, "I sentence mjself to be burned"; and burned he was; and afterwards he was made a saint. And in that case he was his own judge, and therefore it is not improper that a man should judge himself.)

• Appendix, No. ITT, 5 6. ¦ Matth. T. 25. t Gilb. Hist. Com. PI. 35.

Bl. Comm.—119 1889

his plea. He may, in real actions, demand a view of the thing in question, in order to ascertain its identity and other circumstances.

§ 381. e. Oyer.—He may crave oyer" of the writ, or of the bond, or other specialty upon which the action is brought; that is, to hear it read to him, the generality of defendants in the times of ancient simplicity being supposed incapable to read it themselves: whereupon the whole is entered verbatim upon the record, and the defendant may take advantage of any condition or other part of it not stated in the plaintiff's declaration.

§ 382. f. Prayer in aid.—t 3001 In real actions, also, the tenant may pray in aid, or call for assistance of another, to help him to plead because of the feebleness or imbecility of his own estate. Thus a tenant for life may pray in aid of him that hath the inheritance in remainder or reversion, and an incumbent may pray in aid of the patron and ordinary; that is, that they shall be joined in the action and help to defend the title.

§ 383. g. Voucher.— Voucher, also, is the calling in of some person to answer the action that hath warranted the title to the tenant or defendant. This we still make use of in the form of common recoveries, 1 which are grounded on a writ of entry; a species of action that we may remember relies chiefly on the weakness of the tenant's title, who therefore vouches another person to warrant it. If the vouchee appears, he is made defendant instead of the voucher, but, if he afterwards makes default, recovery shall be had against the original defendant, and he shall recover over an equivalent in value against the deficient vouchee. In assizes, indeed, when the principal question is whether the demandant or his ancestors were or were not in possession till the ouster happened, and the title of the tenant is little (if at all) discussed, there no voucher is allowed; but the tenant may bring a writ of warrantia chartce, against the warrantor, to compel him to assist him with a good plea or defense, or else to render damages and the value of the land, if recovered against the tenant/

§ 384. h. Parol demurrer.—In many real actions also, 1 brought by or against an infant under the age of twenty-one years,

h Appendix, No. Ill, § 6. k F. N. B. 135.

i Book II. Append. No. V. J 2. i Dyer. 137.

and also in actions of debt brought against him, as heir to any deceased ancestor, either party may suggest the nonage of the infant, and pray that the proceedings may be deferred till his full age, or, in our legal phrase, that the infant may have his age, and that th»: parol may demur, that is, that the pleadings may be stayed; and then they shall not proceed till his full age, unless it be apparent that he cannot be prejudiced thereby." 1 But, by the statutes of Westm. I, 3 Edward I, c. 46 (Order of Hearing Pleas, 1275), and of Gloucester, 6 Edward I, c. 2 (Real Actions, 1278), in writs of entry sur disseisin in some particular cases, and in actions ancestral brought by I 301 ! an infant, the parol shall not demur; otherwise he might be deforced of his whole property, and even want a maintenance, till he came of age. So, likewise, in a writ of dower the heir shall not have his age; for it is necessary that the widow's claim be immediately determined, else she may want a present subsistence." Nor shall an infant patron have it in a quare impedit," since the law holds it necessary and expedient that the church be immediately filled.

§ 385. 3. Defendant's plea.—When these proceedings arc over, the defendant must then put in his excuse or plea. Pleas are of two sorts; dilatory pleas, and pleas to the action.

§ 386. a. Dilatory pleas.—Dilatory pleas are such as tend merely to delay or put off the suit, by questioning the propriety of the remedy rather than by denying the injury; pleas to the action are such as dispute the very cause of suit. The former cannot be pleaded after a general imparlance, which is an acknowledgment of the propriety of the action. For imparlances are either general, of which we have before spoken, and which are granted of course, or special, with a saving of all exceptions to the writ or count, which may be granted by the prothonotary; or they may be still more special, with a saving of all exceptions whatsoever, which are granted at the discretion of the court."

§ 387. (1) Plea to the jurisdiction.—Dilatory pleas are, 1. To the jurisdiction of the court: alleging, that it ought not to hold plea

m Finch. L. 360. o Ibid. 138.

n 1 Roll. Abr. 137. P 12 Mod. 529.

of this injury, it arising in Wales or beyond sea; 5 or because the land in question is of ancient demesne, and ought only to be demanded in the lord's court, etc.

§ 388. (2) Plea to the disability of plaintiff.—To the disability of the plaintiff, by reason whereof he is incapable to commence or continue the suit, as that he is an alien enemy, outlawed, excommunicated, attainted of treason or felony, under a prcemunire, not in rerum natura —in the nature of things (being only a fictitious person), an infant, a feme covert, or a monk professed.

§ 389. (3) Plea in abatement.—In abatement: which abatement is either of the I 302 ) writ, or the count, for some defect in one of them, as by misnaming the defendant, which is called a misnomer; giving him a wrong addition, as esquire instead of knight; or other want of form in any material respect. Or, it may be, that the plaintiff is dead; for the death of either party is at once an abatement of the suit. And in actions merely personal, arising ex delicto (from wrong done), for wrongs actually done or

5 Demurrer for lack of jurisdiction—Abatement.—It has been held from a very early date in this country that where the jurisdiction fails entirely (as distinguished from cases of special jurisdiction like that of the lord's court, which cases are very rare here) no plea to the jurisdiction is necessary. The court may take notice of the defect in its jurisdiction without it. (Lawrence v. Smith, 5 Mass. 362; Bischoff v. Wethcred, 9 Wall. 812, 19 L. Ed. 829; Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Claflin v. Commonwealth Ins. Co., 110 U. S. 81, 28 L. Ed. 76, 3 Sup. Ct. Rep. 507.) In such a case the plea cannot give jurisdiction to any other court of the same state, and is therefore bail. (Lawrence v. Smith, supra.) Nor can the parties by stipulation give jurisdiction and prevent the court from taking notice of the defect. (Webster v. Buffalo Ins. Co., 110 U. S. 3S6, 28 L. Ed. 172, 4 Sup. Ct. Rep. 79.)

Abatement of the action by death of a party is held to be no longer a mere matter of procedure, to be taken advantage of by a dilatory plea, but a part of the substance of the action. A cause of action which abates by common law cannot be revived in a court of the United States unless an act of Congress allows it to survive. Although these courts follow the procedure of the state courts, and the latter allows a revivor of the action, it cannot be Revived in the federal courts. Whether an action survives depends on the sulstance of the cause of action, not on the forms of procedure to enforce it. (Ex parte Schreiber, 110 IT. S. 76, 77, 28 L. Ed. 65, 3 Sup. Ct. Rep. 423. See, also, Baker v. Crandall, 78 Mo. 584, 47 Am. Rep. 126.— Hammond.

WASHINGTON (CNNMoney.com) -- The Treasury Department made an overly rosy prediction of taxpayer losses on the AIG bailout by changing its accounting practices, the special investigator for the federal bailouts said in a report released Monday.

Special Inspector General Neil Barofsky's latest report to Congress also heaps new criticism on Treasury for taking credit for failed attempts to help homeowners with mortgages exceeding their home's value to secure modified loans.

Reporting directly to Congress, Barofsky reviews all the programs that came about due to the original $700 billion Troubled Asset Relief Program (TARP) that Congress passed during the height of the financial crisis in October 2008.

While Treasury can no longer spend any new money, due to the fund's expired lifespan of two years, Barofsky reported that $178.4 billion in bailout funds remain outstanding. In addition, Treasury has the ability to "obligate" another $80 billion that can still be spent under existing TARP programs.

"In short, it is still far too early to write TARP's obituary," the report concluded.

However, critics of the program seized on the report as further evidence of a failed policy.

"This report calls into significant question the very credibility and competence of the Treasury Department," Darrell Issa, a Republican congressman from California who is the ranking member of the House Oversight Committee, said in a statement.

Earlier this month, Treasury reported that its new plan to extricate the government from American International Group ( AIG , Fortune 500 ) would result in losses to taxpayers of around $5 billion, much less than the $45 billion that the agency reported in March.

While all the loss estimates were much lower than the $180 billion that government had said it might be willing to commit to propping up the insurer, Barofsky questioned Treasury's current accounting methodology on losses.

The report basically said Treasury's $5 billion loss estimate rests on market prices for common shares as of Oct. 1, ignoring "volatility in AIG's stock price." The estimate diverged from Treasury's past calculations that took other "data points" because "no comparable preferred shares exist," Treasury had previously said.

"This conduct has left Treasury vulnerable to charges that it has manipulated its methodology for calculating losses," the report said.

However, Treasury stood behind its calculation, saying it hasn't changed its methodology putting a value on taxpayer losses on the AIG bailout. Treasury said that when it comes to reporting to the auditors, it won't use the same technique, because its exit plan and the exchange of shares won't happen until 2011.

"SigTARP finds Treasury's contention that there was no change in its methodology to be unconvincing," the report said.

Issa said the most disturbing finding of the report is that large banks that pose a threat to the economy continue grow larger and enjoy tacit government support.

"The government has rewarded bad behavior while failing to do enough to deter that behavior from ever happening again," he said.

Help for homeowners

The inspector general's report also said Treasury took too much credit for helping homeowners who did not ultimately benefit from Treasury's Home Affordable Modification Program.

Treasury has said several times that its mortgage modification program has "helped" more than 1.3 million homeowners by reducing their monthly mortgage payments, calling each of these a "success," the report said.

However, Barofsky's team took issue with the level of success, saying more than 700,000 of the modifications ultimately failed and another 173,000 remained in limbo.

"They say for example that they've helped more than 1.3 million people through mortgage modifications, but more than half of those have failed," Barofsky said in an interview with CNNMoney.com's Poppy Harlow. "Then, they go and say, ' Well, each one of those had a significant benefit for the homeowner.' And that's just not true."

Treasury officials could not immediately be reached for comment after the release of the report.

The boilerplate section of many corporate agreements include a “governing law” provision. Often these provisions cover three related, but distinct choices – choice of law, choice of jurisdiction, and choice of venue. More importantly, the legal principles that govern these choices are not the same (at least here in California). In today's posting, I discuss a California choice of law statute that may be unfamiliar to many California lawyers. In upcoming posts, I'll discuss some surprising aspects of choice of jurisdiction and choice of venue clauses.

Section 1646 of the California Civil Code establishes a general choice of law rule for contracts: “A contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.” In 2006, the legislature added § 1301 to the California Commercial Code to add to and make specific the concept expressed in Civil Code § 1646. [I have for several years taught a class in commercial law (Articles 2, 2A and 7) at Chapman University School of Law .]

There's not too much surprising there. What is interesting is that the legislature later decided to add an exception to § 1646 by enacting § 1646.5. Thus, notwithstanding § 1646, the parties to a contract relating to a transaction involving at least $250,000, including a transaction covered by Commercial Code § 1301(a), may agree that California law governs their rights and duties in whole or in part, whether or not the contract or transaction bears a reasonable relation to California. Of course, that begs the question of why the parties might want to choose California law when the contract or transaction bears no reasonable relationship to this state.

A few things about the statute are worthy of note. First, the statute is one-way. In other words, it doesn't authorize the parties to choose another jurisdiction's law. Second, there are some exceptions – the statute won't apply to:

Contracts for labor or personal services;

Relating to any transaction for personal, family or household purposes; or

To the extent contrarty to Commercial Code § 1301(c).

Lastly, the statute is expressly retroactive.

So why did the California legislature think § 1646.5 was a good idea? In Credit Lyonnaise Bank Nederland N.V. v. Manatt, Phelps, Rothenberg & Tunney et al., 202 Cal. App. 3d 1424, 1433 n.14 (1988) cited the following reasons for the enactment of the predecessor to the current statute:

§ 400. (aa) In real actions.—This, by the statute of 32 Henry VIII, c. 2 (Prescription, 1540), in a writ of right is sixty years; in assizes, writs of entry or other possessory actions real, of the seisin of one's ancestors, in lands, and either of their seisin, or one's own, in rents, suits and services, fifty years; and in actions real for lands grounded upon one's own seisin or possession, such possession must have been within thirty years. By statute 1 Mar., st. 2, c. 5 (Limitation of Actions, 1554), this limitation does not extend to any suit for advowsons, upon reasons given in a I 307 ' former chapter." But by the statute 21 Jac. I, c. 2 (Crown Suits, 1623), a time of limitation was extended to the case of the king: viz., sixty years precedent to 19 February, 1623; c but, this becoming ineffectual by efflux of time, the same date of limitation was fixed by statute 9 George III, c. 16 (Crown Suits, 1768), to commence and be reckoned backwards, from the time of bringing any suit or other process, to recover the thing in question; so that a possession for sixty years is now a bar even against the prerogative, in derogation of the ancient maxim, "nullum tempus occurrit regi (no time runs against the king)." By another statute, 21 Jac. I. c. 16 (Limitation, 1623), twenty years is the time of limitation in any writ of formedon, and, by a consequence, twenty years is also the limitation in every action of ejectment; for no ejectment can be brought, unless where the lessor of the plaintiff is entitled to enter on the lands, 4 and by the statute 21 Jac. I, c. 16, no entry can be made by any man, unless within twenty years after his right shall accrue.

The U.S. District Court for the District of Maryland has determined that the requirements for innocent landowners contained in the 2001 Small Business Relief and Brownfields Revitalization Act do not apply retroactively. Accordingly, the court ruled that a landowner may file a CERCLA Section 107 cost recovery action against a waste generator because the landowner had fulfilled the innocent landowner requirements that were in place when the property was purchased.

The case involves a contaminated site where Mineral Pigments Corporation (which later became known as Rockwood Pigments NA, Inc.) dumped metal-bearing wastes into sand and gravel pits during the 1960s and 1970s. Later, 1325 G Street Associates ( G Street ) bought the site without realizing that it was contaminated.

The court ruled that Rockwood must reimburse G Street more than $181,000 for past response costs. Further, the court held that Rockwood is liable for G Street 's future response costs at the site. The September 7, 2004 decision was handed down in 1325 G Street Associates, LP v. Rockwood Pigments NA, Inc. (Docket Number: DKC 2002-1622).

Site History

Since the 1960s, Mineral Pigments Corporation (now Rockwood Pigments NA, Inc.) has manufactured metal-based pigments for use in paints and other products at its facility in Beltsville , Maryland . Wastes containing chromium, lead, and zinc are generated during the processes. From the late 1960s to the early 1970s, pigment wastes were disposed in mined-out sand and gravel pits located on land then owned by the Contee Sand and Gravel Company, Inc. (CSG). The CSG site is located approximately one mile west of the Mineral Pigments facility. During this period, about 50,000 gallons of liquid waste sludge containing lead, chromium, and zinc were dumped at the CSG site every two weeks....

INNOCENCE, PRESUMPTION OF - The indictment or formal charge against any person is not evidence of guilt. Indeed, the person is presumed by the law to be innocent. The law does not require a person to prove his innocence or produce any evidence at all. The Government has the burden of proving a person guilty beyond a reasonable doubt, and if it fails to do so the person is (so far as the law is concerned) not guilty.

Presumption of Innocence

The concept of the presumption of innocence had its roots in the Common Law, long established in Britain and thence in America . Besides being a part of the environment of justice in which our Founders lived, the concept is central to the ideas of Freedom and Due Process of Law. In addition, the common sense of any reasonably enlightened people must dictate that a person accused is innocent until proven guilty, just as much as they would believe that the other rights of defendants must be reasonably protected. Those protections for the accused were incorporated by the Founders into the Fourth, Fifth, Sixth and Seventh Articles of the Bill of Rights , and could not have been of any import had there not first been a presumption of innocence.

A close parallel to the presumption of innocence is the presumption of freedom -- that freedom is not something the government rations to the people, but rather a birthright the people own in its entirety, to be loaned back in small parts to the government with their knowing consent. The presumption of freedom is guaranteed by the Ninth and Tenth Articles of the Bill of Rights -- too often made light of today, but of key importance to the concept of individual Liberty . Those Articles demand, in essence, that unless specifically stated to the contrary by the Constitution, the people shall be presumed to own every freedom, as well as the power of self-determination.

If a citizen cannot be presumed innocent until proven guilty, he likewise will not be presumed to have freedom without an argument over his right to that freedom. At that juncture, both freedom and innocence yield to the convenience of government.

In both cases, the opposite must prevail if we are to call ourselves Americans.

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.

It is stated as unquestioned in the text-books, and has been referred to as a matter of course in the decisions of this court and in the courts of the several States. See Taylor on Evidence, vol. 1, c. 5, 126, 127; Wills on Circumstantial Evidence, c. 5, 91; Best on Presumptions, part 2, c. 1, 63, 64; c. 3, 31-58; Greenleaf on Evidence, part 5, ? ? 29, &c.; 11 Criminal Law Magazine, 3; Wharton on Evidence, ? 1244; Phillips on Evidence, Cowen & Hill's Notes, vol. 2, p. 289; Lilienthal v. United States, 97 U.S. 237; Hopt v. Utah, 120 U.S. 430; Commonwealth v. Webster, 5 Cush. 295, 320; State v. Bartlett, 43 N.H. 224; Alexander v. People, 96 Illinois, 96; People v. Fairchild, 48 Michigan, 31; People v. Millard, 53 Michigan, 63; Commonwealth v. Whittaker, 131 Mass. 224; Blake v. State, 3 Tex. App. 581; Wharton v. State, 73 Alabama, 366; State v. Tibbetts, 35 Maine, 81; Moorer v. State, 44 Alabama, 15. Greenleaf traces this presumption to Deuteronomy , and quotes Mascardus De Probationibus to show that it was substantially embodied in the laws of Sparta and Athens . Greenl. Ev. part 5, section 29, note. Whether Greenleaf is correct or not in this view, there can be no question that the Roman law was pervaded with the results of this maxim of criminal administration , as the following extracts show:

"Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day." Code, L. IV, T. XX, 1, 1. 25.

[click on more to read additional quotes]

The noble (bivus) Trajan wrote to Julius Frontonus that no man should be condemned on a criminal charge in his absence, because it was better to let the crime of a guilty person go unpunished than to condemn the innocent ." Dig. L. XLVIII, Tit. 19, 1. 5.
"In all cases of doubt, the most merciful construction of facts should be preferred." Dig. L. L, Tit. XVII, 1. 56.
"In criminal cases the milder construction shall always be preserved." Dig. L. L, Tit. XVII, 1. 155, s. 2.
"In cases of doubt it is no less just than it is safe to adopt the milder construction." Dig. L. L, Tit. XVII, 1. 192, s. 1.

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, "a passionate man," seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, "Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?" to which Julian replied, "If it suffices to accuse, what will become of the innocent?" Rerum Gestarum, L. XVIII, c. 1. The rule thus found in the Roman law was, along with many other fundamental and humane maxims of that system, preserved for mankind by the canon law. Decretum Gratiani de Presumptionibus, L. II, T. XXIII, c. 14, A.D. 1198; [***492] Corpus Juris Canonici Hispani et Indici, R.P. Murillo Velarde, Tom. 1, L. II, n. 140. Exactly when this presumption was in precise words stated to be a part of the common law is involved in doubt. The writer of an able article in the North American Review, January, 1851, tracing the genesis of the principle, says that no express mention of the presumption of innocence can be found in the books of the common law earlier than the date of McNally's Evidence (1802). Whether this statement is correct is a matter of no moment, for there can be no doubt that, if the principle had not found formal expression in the common law writers at an earlier date, yet the practice which flowed from it has existed in the common law from the earliest time.

Fortescue says : "Who, then, in England can be put to death unjustly for any crime? since he is allowed so many pleas and privileges in favor of life; none but his neighbors, men of honest and good repute, against whom he can have no probable cause of exception, can find the person accused guilty. Indeed, one would much rather that twenty guilty persons should escape the punishment of death than that one innocent person should be condemned and suffer capitally ." De Laudibus Legum Angliae, Amos' translation, Cambridge , 1825.

[*456] Lord Hale (1678) says : "In some cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die." 2 Hale P.C. 290. He further observes: "And thus the reasons stand on both sides, and though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger, quod dubitas, ne faceris." 1 Hale P.C. 24.

Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem. How fully the presumption of innocence had been evolved as a principle and applied at common law is shown in McKinley's case (1817), 33 St. Tr. 275, 506, where Lord Gillies says: "It is impossible to look at it [a treasonable oath which it was alleged that [**404] McKinley had taken] without suspecting, and thinking it probable, it imports an obligation to commit a capital crime. That has been and is my impression. But the presumption in favor of innocence is not to be reargued by mere suspicion. I am sorry to see, in this information, that the public prosecutor treats this too lightly; he seems to think that the law entertains no such presumption of innocence. I cannot listen to this. I conceive that this presumption is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman; and I was happy to hear from Lord Hermand he is inclined to give full effect to it. To overturn this, there must be legal evidence of guilt, carrying home a decree of conviction short only absolute certainty."

Purchasers who acquire property without knowledge of contamination on the property.

Sec. 9601. Definitions For purpose of this subchapter-- (1) The term ``act of God'' means an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight.

(35)(A) The term ``contractual relationship'', for the purpose of section 9607(b)(3) of this title, includes, but is not limited to, land contracts, deeds, easements, leases, or other instruments transferring title or possession, unless the real property on which the facility concerned is located was acquired by the defendant after the disposal or placement of the hazardous substance on, in, or at the facility, and one or more of the circumstances described in clause (i), (ii), or (iii) is also established by the defendant by a preponderance of the evidence: (i) At the time the defendant acquired the facility the defendant did not know and had no reason to know that any hazardous substance which is the subject of the release or threatened release was disposed of on, in, or at the facility. (ii) The defendant is a government entity which acquired the facility by escheat, or through any other involuntary transfer or acquisition, or through the exercise of eminent domain authority by purchase or condemnation. (iii) The defendant acquired the facility by inheritance or bequest. In addition to establishing the foregoing, the defendant must establish that the defendant has satisfied the requirements of section 9607(b)(3)(a) and (b) of this title, provides full cooperation, assistance, and facility access to the persons that are authorized to conduct response actions at the facility (including the cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial response action at the facility), is in compliance with any land use restrictions established or relied on in connection with the response action at a facility, and does not impede the effectiveness or integrity of any institutional control employed at the facility in connection with a response action. (B) Reason to know.-- (i) All appropriate inquiries.--To establish that the defendant had no reason to know of the matter described in subparagraph (A)(i), the defendant must demonstrate to a court that-- (I) on or before the date on which the defendant acquired the facility, the defendant carried out all appropriate inquiries, as provided in clauses (ii) and (iv), into the previous ownership and uses of the facility in accordance with generally accepted good commercial and customary standards and practices; and (II) the defendant took reasonable steps to-- (aa) stop any continuing release; (bb) prevent any threatened future release; and (cc) prevent or limit any human, environmental, or natural resource exposure to any previously released hazardous substance. (ii) Standards and practices.--Not later than 2 years after January 11, 2002, the Administrator shall by regulation establish standards and practices for the purpose of satisfying the requirement to carry out all appropriate inquiries under clause (i). (iii) Criteria.--In promulgating regulations that establish the standards and practices referred to in clause (ii), the Administrator shall include each of the following: (I) The results of an inquiry by an environmental professional. (II) Interviews with past and present owners, operators, and occupants of the facility for the purpose of gathering information regarding the potential for contamination at the facility. (III) Reviews of historical sources, such as chain of title documents, aerial photographs, building department records, and land use records, to determine previous uses and occupancies of the real property since the property was first developed. (IV) Searches for recorded environmental cleanup liens against the facility that are filed under Federal, State, or local law. (V) Reviews of Federal, State, and local government records, waste disposal records, underground storage tank records, and hazardous waste handling, generation, treatment, disposal, and spill records, concerning contamination at or near the facility. (VI) Visual inspections of the facility and of adjoining properties. (VII) Specialized knowledge or experience on the part of the defendant. (VIII) The relationship of the purchase price to the value of the property, if the property was not contaminated. (IX) Commonly known or reasonably ascertainable information about the property. (X) The degree of obviousness of the presence or likely presence of contamination at the property, and the ability to detect the contamination by appropriate investigation. (iv) Interim standards and practices.-- (I) Property purchased before may 31, 1997.--With respect to property purchased before May 31, 1997, in making a determination with respect to a defendant described in clause (i), a court shall take into account-- (aa) any specialized knowledge or experience on the part of the defendant; (bb) the relationship of the purchase price to the value of the property, if the property was not contaminated; (cc) commonly known or reasonably ascertainable information about the property; (dd) the obviousness of the presence or likely presence of contamination at the property; and (ee) the ability of the defendant to detect the contamination by appropriate inspection. (II) Property purchased on or after may 31, 1997.--With respect to property purchased on or after May 31, 1997, and until the Administrator promulgates the regulations described in clause (ii), the procedures of the American Society for Testing and Materials, including the document known as ``Standard E1527-97'', entitled ``Standard Practice for Environmental Site Assessment: Phase 1 Environmental Site Assessment Process'', shall satisfy the requirements in clause (i). (v) Site inspection and title search.--In the case of property for residential use or other similar use purchased by a nongovernmental or noncommercial entity, a facility inspection and title search that reveal no basis for further investigation shall be considered to satisfy the requirements of this subparagraph. (C) Nothing in this paragraph or in section 9607(b)(3) of this title shall diminish the liability of any previous owner or operator of such facility who would otherwise be liable under this chapter. Notwithstanding this paragraph, if the defendant obtained actual knowledge of the release or threatened release of a hazardous substance at such facility when the defendant owned the real property and then subsequently transferred ownership of the property to another person without disclosing such knowledge, such defendant shall be treated as liable under section 9607(a)(1) of this title and no defense under section 9607(b)(3) of this title shall be available to such defendant. (D) Nothing in this paragraph shall affect the liability under this chapter of a defendant who, by any act or omission, caused or contributed to the release or threatened release of a hazardous substance which is the subject of the action relating to the facility.

The Solid Waste Disposal Act, referred to in pars. (14), (39)(B)(iv), (vi)(I), (ix), and (41)(B)(i), is title II of Pub. L. 89- 272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94- 580, Sec. 2, Oct. 21, 1976, 90 Stat. 2795, which is classified generally to chapter 82 (Sec. 6901 et seq.) of this title. Subtitles C and I of the Act are classified generally to subchapters III (Sec. 6921 et seq.) and IX (Sec. 6991 et seq.), respectively, of chapter 82 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of this title and Tables.

The Federal Water Pollution Control Act, referred to in par. (39)(B)(iv), is act June 30, 1948, ch. 758, as amended generally by Pub. L. 92-500, Sec. 2, Oct. 18, 1972, 86 Stat. 816, also known as the Clean Water Act, which is classified generally to chapter 26 (Sec. 1251 et seq.) of Title 33, Navigation and Navigable Waters. Section 311(c) of the Act was amended generally by Pub. L. 101-380, title IV, Sec. 4201(a), Aug. 18, 1990, 104 Stat. 523, and no longer contains provisions directing the publishing of a National Contingency Plan. However, such provisions are contained in section 1321(d) of Title 33. For complete classification of this Act to the Code, see Short Title note set out under section 1251 of Title 33 and Tables. The Toxic Substances Control Act, referred to in par. (39)(B)(iv), (viii)(II), is Pub. L. 94-469, Oct. 11, 1976, 90 Stat. 2003, as amended, which is classified generally to chapter 53 (Sec. 2601 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 2601 of Title 15 and Tables. Amendments 2002--Par. (35)(A). Pub. L. 107-118, Sec. 223(1), in introductory provisions substituted ``deeds, easements, leases, or'' for ``deeds or'' and in concluding provisions substituted ``the defendant has satisfied'' for ``he has satisfied'' and inserted before period at end ``, provides full cooperation, assistance, and facility access to the persons that are authorized to conduct response actions at the facility (including the cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial response action at the facility), is in compliance with any land use restrictions established or relied on in connection with the response action at a facility, and does not impede the effectiveness or integrity of any institutional control employed at the facility in connection with a response action''. Par. (35)(B). Pub. L. 107-118, Sec. 223(2), added subpar. (B) and struck out former subpar. (B) which read as follows: ``To establish that the defendant had no reason to know, as provided in clause (i) of subparagraph (A) of this paragraph, the defendant must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. For purposes of the preceding sentence the court shall take into account any specialized knowledge or experience on the part of the defendant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection.'' Par. (39). Pub. L. 107-118, Sec. 211(a), added par. (39). Par. (40). Pub. L. 107-118, Sec. 222(a), added par. (40). Par. (41). Pub. L. 107-118, Sec. 231(a), added par. (41). 1999--Par. (20)(D). Pub. L. 106-74, which directed the amendment of subpar. (D) by inserting ``through seizure or otherwise in connection with law enforcement activity'' before ``involuntary'' the first place it appears, could not be executed because the word ``involuntary'' does not appear in subpar. (D). 1996--Pars. (8), (16). Pub. L. 104-208, Sec. 101(a) [title II, Sec. 211(b)], substituted ``Magnuson-Stevens Fishery'' for ``Magnuson Fishery''. Par. (20)(E) to (G). Pub. L. 104-208, Sec. 2502(b), added subpars. (E) to (G). Par. (26). Pub. L. 104-287 substituted ``section 60101(a) of title 49'' for ``the Pipeline Safety Act''. 1994--Par. (26). Pub. L. 103-429 substituted ``a hazardous liquid pipeline facility'' for ``pipeline''. 1988--Par. (23). Pub. L. 100-707 substituted ``Disaster Relief and Emergency Assistance Act'' for ``Disaster Relief Act of 1974''. 1986--Pub. L. 99-499, Sec. 101(f), struck out ``, the term'' after ``subchapter'' in introductory text. Pars. (1) to (10). Pub. L. 99-499, Sec. 101(f), inserted ``The term'' and substituted a period for the semicolon at end. Par. (11). Pub. L. 99-499, Sec. 517(c)(2), amended par. (11) generally. Prior to amendment, par. (11) read as follows: ``The term `Fund' or `Trust Fund' means the Hazardous Substance Response Fund established by section 9631 of this title or, in the case of a hazardous waste disposal facility for which liability has been transferred under section 9607(k) of this title, the Post-closure Liability Fund established by section 9641 of this title.'' Pub. L. 99-499, Sec. 101(f), inserted ``The term'' and substituted a period for the semicolon at end. Pars. (12) to (15). Pub. L. 99-499, Sec. 101(f), inserted ``The term'' and substituted a period for the semicolon at end. Par. (16). Pub. L. 99-499, Sec. 101(a), (f), inserted ``The term'', struck out ``or'' after ``local government,'' inserted ``, any Indian tribe, or, if such resources are subject to a trust restriction on alienation, any member of an Indian tribe'', and substituted a period for the semicolon at end. Pars. (17) to (19). Pub. L. 99-499, Sec. 101(f), inserted ``The term'' and substituted a period for the semicolon at end. Par. (20)(A). Pub. L. 99-499, Sec. 101(f), inserted ``The term''. Pub. L. 99-499, Sec. 101(b)(2), amended cl. (iii) generally. Prior to amendment, cl. (iii) read as follows: ``in the case of any abandoned facility, any person who owned, operated, or otherwise controlled activities at such facility immediately prior to such abandonment.'' Pub. L. 99-499, Sec. 101(b)(3), in provisions following subcl. (iii), substituted a period for the semicolon at end. Par. (20)(B), (C). Pub. L. 99-499, Sec. 101(b)(3), substituted ``In the case'' for ``in the case'' and a period for the semicolon at end. Par. (20)(D). Pub. L. 99-499, Sec. 101(b)(1), (f), added subpar. (D). The part of Sec. 101(f) of Pub. L. 99-499 which directed the amendment of par. (20) by changing the semicolon at end to a period could not be executed in view of the prior amendment of par. (20) by Sec. 101(b)(1) of Pub. L. 99-499 which added subpar. (D) ending in a period. Par. (21). Pub. L. 99-499, Sec. 101(f), inserted ``The term'' and substituted a period for the semicolon at end. Par. (22). Pub. L. 99-499, Sec. 101(c), (f), inserted ``The term'' and ``(including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)'', substituted a period for the semicolon at end. Par. (23). Pub. L. 99-499, Sec. 101(f), inserted ``The terms'' and substituted a period for the semicolon at end. Par. (24). Pub. L. 99-499, Sec. 101(d), (f), inserted ``The terms'' and substituted ``and associated contaminated materials'' for ``or contaminated materials'' and ``welfare; the term includes offsite transport and offsite storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated materials.'' for ``welfare. The term does not include offsite transport of hazardous substances, or the storage, treatment, destruction, or secure disposition offsite of such hazardous substances or contaminated materials unless the President determines that such actions (A) are more cost-effective than other remedial actions, (B) will create new capacity to manage, in compliance with subtitle C of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.], hazardous substances in addition to those located at the affected facility, or (C) are necessary to protect public health or welfare or the environment from a present or potential risk which may be created by further exposure to the continued presence of such substances or materials;''. The part of Sec. 101(f) of Pub. L. 99- 499 which directed amendment of par. (24) by changing the semicolon at end to a period could not be executed in view of prior amendment of par. (24) by Sec. 101(d) of Pub. L. 99-499 which substituted language at end of par. (24) ending in a period for former language ending in a semicolon. Par. (25). Pub. L. 99-499, Sec. 101(e), (f), inserted ``The terms'' and ``, all such terms (including the terms `removal' and `remedial action') include enforcement activities related thereto.'' The part of Sec. 101(f) of Pub. L. 99-499 which directed amendment of par. (25) by changing the semicolon at end to a period could not be executed in view of prior amendment of par. (25) by Sec. 101(e) of Pub. L. 99-499 inserting language and a period at end of par. (25). Pars. (26), (27). Pub. L. 99-499, Sec. 101(f), inserted ``The terms'' and substituted a period for the semicolon at end. Par. (28). Pub. L. 99-499, Sec. 101(f), inserted ``The term'' and substituted a period for the semicolon at end. Par. (29). Pub. L. 99-499, Sec. 101(f), inserted ``The terms'' and substituted a period for the semicolon at end. Par. (30). Pub. L. 99-499, Sec. 101(f), inserted ``The terms''. Par. (31). Pub. L. 99-499, Sec. 101(f), inserted ``The term'' and substituted a period for ``; and''. Par. (32). Pub. L. 99-499, Sec. 101(f), inserted ``The terms''. Pars. (33) to (36). Pub. L. 99-499, Sec. 101(f), added pars. (33) to (36). Par. (37). Pub. L. 99-499, Sec. 114(b), added par. (37). Par. (38). Pub. L. 99-499, Sec. 127(a), added par. (38). 1980--Pars. (8), (16). Pub. L. 96-561 substituted ``Magnuson Fishery Conservation and Management Act'' for ``Fishery Conservation and Management Act of 1976''. Effective Date of 1996 Amendment Section 101(a) [title II, Sec. 211(b)] of div. A of Pub. L. 104-208 provided that the amendment made by that section is effective 15 days after Oct. 11, 1996. Amendment by section 2502(b) of Pub. L. 104-208 applicable with respect to any claim that has not been finally adjudicated as of Sept. 30, 1996, see section 2505 of Pub. L. 104-208, set out as a note under section 6991b of this title. Effective Date of 1986 Amendment Section 4 of Pub. L. 99-499 provided that: ``Except as otherwise specified in section 121(b) of this Act [set out as an Effective Date note under section 9621 of this title] or in any other provision of titles I, II, III, and IV of this Act [see Tables for classification], the amendments made by titles I through IV of this Act [enacting subchapter IV of this chapter and sections 9616 to 9626, 9658 to 9660, and 9661 of this title and sections 2701 to 2707 and 2810 of Title 10, Armed Forces, amending sections 6926, 6928, 6991 to 6991d, 6991g, 9601 to 9609, 9611 to 9614, 9631, 9651, 9656, and 9657 of this title and section 1416 of Title 33, Navigation and Navigable Waters, and renumbering former section 2701 of Title 10 as section 2721 of Title 10] shall take effect on the enactment of this Act [Oct. 17, 1986].'' Amendment by section 517(c)(2) of Pub. L. 99-499 effective Jan. 1, 1987, see section 517(e) of Pub. L. 99-499, set out as an Effective Date note under section 9507 of Title 26, Internal Revenue Code. Effective Date of 1980 Amendment Section 238(b) of Pub. L. 96-561 provided that the amendment made by that section is effective 15 days after Dec. 22, 1980. Short Title of 2002 Amendments Pub. L. 107-118, Sec. 1, Jan. 11, 2002, 115 Stat. 2356, provided that: ``This Act [enacting section 9628 of this title, amending this section and sections 9604, 9605, 9607, and 9622 of this title, and enacting provisions set out as notes under this section and section 9607 of this title] may be cited as the `Small Business Liability Relief and Brownfields Revitalization Act'.'' Pub. L. 107-118, title I, Sec. 101, Jan. 11, 2002, 115 Stat. 2356, provided that: ``This title [amending sections 9607 and 9622 of this title and enacting provisions set out as a note under section 9607 of this title] may be cited as the `Small Business Liability Protection Act'.'' Pub. L. 107-118, title II, Sec. 201, Jan. 11, 2002, 115 Stat. 2360, provided that: ``This title [enacting section 9628 of this title and amending this section and sections 9604, 9605, and 9607 of this title] may be cited as the `Brownfields Revitalization and Environmental Restoration Act of 2001'.'' Short Title of 1996 Amendment Section 2501 of div. A of Pub. L. 104-208 provided that: ``This subtitle [subtitle E (Secs. 2501-2505) of title II of div. A of Pub. L. 104-208, amending this section and sections 6991b and 9607 of this title and enacting provisions set out as a note under section 6991b of this title] may be cited as the `Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996'.'' Short Title of 1992 Amendment Pub. L. 102-426, Sec. 1, Oct. 19, 1992, 106 Stat. 2174, provided that: ``This Act [amending section 9620 of this title and enacting provisions set out as a note under section 9620 of this title] may be cited as the `Community Environmental Response Facilitation Act'.'' Short Title of 1986 Amendment Section 1 of Pub. L. 99-499 provided that: ``This Act [enacting subchapter IV of this chapter and sections 9616 to 9626, 9658 to 9662, 11001 to 11005, 11021 to 11023, and 11041 to 11050 of this title, sections 2701 to 2707 and 2810 of Title 10, Armed Forces, and sections 59A, 4671, 4672, 9507, and 9508 of Title 26, Internal Revenue Code, amending this section, sections 6926, 6928, 6991 to 6991d, 6991g, 9602 to 9609, 9611 to 9614, 9631, 9651, 9656, and 9657 of this title, sections 26, 164, 275, 936, 1561, 4041, 4042, 4081, 4221, 4611, 4612, 4661, 4662, 6154, 6416, 6420, 6421, 6425, 6427, 6655, 9502, 9503, and 9506 of Title 26, and section 1416 of Title 33, Navigation and Navigable Waters, renumbering former section 2701 of Title 10 as section 2721 of Title 10, repealing sections 9631 to 9633, 9641, and 9653 of this title and sections 4681 and 4682 of Title 26, and enacting provisions set out as notes under this section, sections 6921, 6991b, 7401, 9620, 9621, 9658, 9660, 9661, and 11001 of this title, section 2703 of Title 10, sections 1, 26, 4041, 4611, 4661, 4671, 4681, 9507, and 9508 of Title 26, and section 655 of Title 29, Labor] may be cited as the `Superfund Amendments and Reauthorization Act of 1986'.'' Short Title Section 1 of Pub. L. 96-510 provided: ``That this Act [enacting this chapter, section 6911a of this title, and sections 4611, 4612, 4661, 4662, 4681, and 4682 of Title 26, Internal Revenue Code, amending section 6911 of this title, section 1364 of Title 33, Navigation and Navigable Waters, and section 11901 of Title 49, Transportation, and enacting provisions set out as notes under section 6911 of this title and sections 1 and 4611 of Title 26] may be cited as the `Comprehensive Environmental Response, Compensation, and Liability Act of 1980'.'' Transfer of Functions For transfer of certain functions from Nuclear Regulatory Commission to Chairman thereof, see Reorg. Plan No. 1 of 1980, 45 F.R. 40561, 94 Stat. 3585, set out as a note under section 5841 of this title. Territorial Sea and Contiguous Zone of United States For extension of territorial sea and contiguous zone of United States, see Proc. No. 5928 and Proc. No. 7219, respectively, set out as notes under section 1331 of Title 43, Public Lands. Definitions Section 2 of Pub. L. 99-499 provided that: ``As used in this Act [see Short Title of 1986 Amendment note above]--

§ 405. (iv) Conditions and qualities of a plea.—The conditions and qualities of a plea (which, as well as the doctrine of estoppels, will also hold equally, mutatis mutandis (making the necessary changes), with regard to other parts of pleading) are,

1. That it be single and containing only one matter; for duplicity begets confusion. But by statute 4 & 5 Ann., c. 16 (1705), a man with leave of the court may plead two or more distinct matters or single pleas; as in an action of assault and battery, these three, not guilty, son assault demesne and the statute of limitations. 11

2. That it be direct and positive, and not argumentative. 3. That it have convenient certainty of time, place and persons. 4. That it answer the plaintiff's allegations in every material point. 5. That it be so pleaded as to be capable of trial.*

* But quaere whether under the new procedure it is necessary to plead an estoppel by record or deed any more than an estoppel in pais by such a special plea, where the effect of the estoppel is admissible in proof under a denial.— Hammond.

"A serjeant of the law, ware and wise,
That often hadde ben at the parvis,
Ther was also, full rich of excellence.
Discreet he was and of great reverence,
He sened swiche; his wordes were so wise,
Justice he was ful often in assise,
By patent, and by pleine commissiun;
For his science, and for his high renoun,
Of fees and robes had he many on." [ 3 ]

Let him who takes a thief, or to whom one taken is given, and he then lets conceals the theft, pay for the thief according to his wer. If he be an ealdorman, let him forfeit his shire, unless the king is willing to be merciful to him. [ 8 ]

That a thief shall be pursued.... If there be present need, let it be made known to the hundredman, and let him make it known to the tithingmen; and let all go forth to where God may direct them to go. Let them do justice on the thief, as it was formerly the enactment of Edmund I . [ 9 ]

And the man who neglects this, and denies the doom of the hundred, and the same be afterwards proved against him, let him pay to the hundred xxx. pence; and for the second time lx. pence, half to the hundred, half to the lord. If he do so a third time, let him pay half a pound; for the fourth time, let him forfeit all that he owns, and be an outlaw, unless the king allow Him to remain in the country. [ 10 ]

In 920 AD, King Edward the Elder set forth that the reeve or gerefa of the shire, a royal official, should hold court each month to try cases of both civil and criminal matters. The modern term “sheriff” originates from the Saxon " shire reeve" and the term gerefa . [ 11 ] The shire reeve was the earliest public official charged specifically with keeping the King's peace.

I will that each reeve have a gemot always once in four weeks, and so do that every man be worthy of folk-right; and that every suit have an end, and a term when it shall be brought forward. If that any one disregard, let him make bot as we before ordained. [ 12 ]

The Norman invasion of England eventually disrupted the Saxon hundreds system. Gradually, disregard for collective responsibility in conserving the peace led to relaxed requirements for the King's subjects to appear at each session of court. The baronage and clergy were no longer required to appear unless specifically required, and persons having matters before the court could have attorneys appear on their behalf. [ 13 ] In response to the loss of this collective responsibility, Henry III of England appointed four specific knights in each county deemed responsible for conserving the peace.

By virtue of the office of general conservator of the peace throughout the whole kingdom, the High Warden may commit all violators of the peace, or bind them in recognizances to keep it; but the other Judges are only so in their own Courts.

"The principal, the vital defect in the existing law," says
Chief Justice Beatty (Report, page 396), "is this permission
to make local rules. There are, I have reason to believe,
other important defects in the law, but as to most of these
there are more competent judges, and I leave it to them to
point out the evil and suggest a remedy. But as to- the practical
workings of the local rules and customs of miners, when
allowed the force of law, I have very decided opinions, which
I feel that my means of knowledge justify me in stating with
some confidence in their correctness. I believe that the
whole subject of mining locations is an extremely simple
one,, which may easily, and certainly therefore ought to be,
regulated by one general law, the terms and existence of
which shall be established by public and authentic records,
and not left to be proved in every case by the oral testimony
of witnesses, or by writing contained in loose papers or memorandum-
books, such as are often dignified by the name of
'mining records.' I am convinced, moreover, that the tainting
of every mining title in the land at its very inception
with the uncertainty which results from the actual or possible
evistence of rules affecting its validity, perfectly authentic evidence
of which is nowhere to be found, is a stupendous evil.
Experience has demonstrated that such an uncertain state
of the law is a prolific source of litigation, and no experience
is required to convince any man of ordinary intelligence that

it must have the effect of depreciating the value of all unpatented
claims by deterring the more prudent class of capitalists
from investing in them. That the subject is simple enough
to be embraced in one general law is proved by the fact that
the laws of the various districts, although differing in details,
are in substance identical, and are substantially contained in
the existing acts of Congress.

Water Rights:

Water rights in California can be held by any legal entity. There are no restrictions on who can hold water rights, thus the owner can be an individual, related individuals, non-related individuals, trusts, corporations, government agencies, etc.. Water rights are considered real property (they can be owned separately from the land on which the water is used or diverted) and can be transferred from one owner to another, both temporarily or permanently. Any transfer (sale, lease, or exchange) is subject to approval by the State Water Board through the application process discussed above. Approval is granted upon finding that the transfer would not result in injury to any other water right and would not unreasonably affect fish, wildlife, or other instream beneficial use.

An appropriative water right in California can be maintained only by continuous beneficial use, and can be lost by five or more continuous years of non-use. Riparian rights, on the other hand, cannot be lost through non-use. Appropriative rights can also be lost through abandonment, but to constitute abandonment of an appropriative right, there must be the intent not to resume the beneficial use of the water right. As a result, abandonment is always voluntary. The rights to waters lost through abandonment or non-use revert to the public, but only after notice has been given and a public hearing is held.

Adjudications:

In California, adjudication can be initiated through the court or through statutory procedures. Court initiated adjudication occurs when a water right lawsuit is filed in court (all surface and ground water rights may be included in this procedure). In the case of a court initiated adjudication, the court often asks the State Water Board to act a referee and to conduct an investigation and report back. Statutory adjudications result when one or more entities claim a right from a specific source and file a petition with the State Water Board. The statutory procedure can be used to determine all rights to any body of water including percolating groundwater. The result of a statutory adjudication is a decree that integrates all rights on the water source and sets quantity, season, priority, etc..

California statute«.— (1) Under Civ. Code § 1007, the running of limitations operates on the state in respect to any property not dedicated to public use as soon as adverse possession thereof begins without reference to a presumed grant. Peo. v. Banning Co., 140 P 587. (2) A reservation of swamp lands of the state from s.-ile by state statute is a mere restriction on the general power delegated to the officers of the state to sell swamp lands, and the lands may be acquired by adverse possession, unless dedicated to a public use. Peo. v. Banning Co., 140 P 587. (3) Where tidelands of the state have been dedicated to a public use, there can be no adverse possession thereof to start the running of limitations against any action by the state or its authorized agencies to assert the public right or such possession as will give title by prescription to the adverse claimants against the public right. Peo. v. Banning Co., 140 P 587. (4) It has been held by the supreme court of the United States that the statute declares that the people of the state will not sue any person for or in respect of any real property by reason of the right or title of the people to the same, unless certain facts exist, was held to be obviated, as regards land in the bay of San Francisco beyond the established harbor line, by the act creating the board of state harbor commissioners and directing them to take possession of all that portion of the bay lying beyond the established harbor line. Weber v. Harbor Comrs., 18 Wall. 57, 68, 21 L. ed. 798. The court In this case said:

"It is contended with much force that the statute only applies to lands which the State holds, as private proprietor, for sale or other disposition, and in respect to which the title may be lost by adverse possession, as defined in the same statute, and not to lands which she holds as sovereign In trust for the public. . . . Where lands are held by the State simply for sale or other disposition, and not as sovereign in trust for the public, there Is some reason in requiring the assertion of her rights within a limited period, when any portion of such lands Is intruded upon, or occupied without her permission, and the policy of the statute would be carried out by restricting its application to such cases."

11-] In Minnesota it is held, however, under the statutory provision that the limitations for the commencement of actions "shall apply to the same actions when brought in the name of the state, or in the name of any officer," etc., that no distinction can be made between actions brought as "sovereign" or In a governmental capacity and those brought as "proprietary" or such as a private person might bring. St. Pnul v. Chicago, etc., R. Co., 45 Minn. 387, 48 NW 17.

46. Buckner v. Ktrkland, 110 S W 399, 33 KyL 603.

47. State v. Seattle, 57 Wash. 602, 107 P 827, 27 LRANS 11S8.

48. Rochester v. Kennedy, 229 Pa. 251, 78 A 133; Bagley v. Wallace, 16 Serg. & R. (Pa.) 245; State v. Arledge, 18 S. C. L. 401, 23 AmD 145. And see cases Infra this note. Compare Chamberlain v. Ahrens, 55 Mich. Ill, 20 NW 814 (where it was said that before the express statutory enactment title could be acquired to land owned by the state and held In a proprietary right as distinguished from lands held In trust for the public).

??] Where lands have been forfeited to the »täte under the delinquent tax laws or otherwise, (1) they cannot be the subject of adverse possession while the title thus acquired remains in the state. Bagley v. Wallace, 16 Serg. & R. (Pa.) 245. (2) And if the lands were held adversely to the owner at the time of the forfeiture the adverse character of the occupancy ceases when the state acquires title and cannot be asserted against either the state or its grantee. Armstrong v. Morrill, 14 Wall. (U. S.) 120, 20 L. ed. 765; Hall v. Gittings, 2 Harr. & J. (Md.) 112: Levasser v. Washburn, 11 Gratt. (52 Va.) 572. 578; Hale v. Branscum, 10 Gratt. (51 Va.) 418; Staats v. Board, 10 Gratt. (51 Va.) 400; Hall v. Webb, 21 W. Va. 318. In Levas.scr v. Washburn, supra, it was said; "It Is true, in a certain sense, the commonwealth takes the land on forfeiture in the same plight and condition in which It stood at the time of the forfeiture. The commonwealth takes the estate and title of the former owner, and no other. If at the time of the forfeiture his title were absolutely bound by the adversary possession of another, it may be no title would vest in the commonwealth, unless it were saved by the existence of her lien on the land for arrears of taxes; a point upon which I express no opinion. But if when the forfeiture accrued the right of entry still remained to the owner, though an ad versary possession had been commenced, the possession as to her must lose Its adversary character, and she must take and hold the subject with the same rights, privileges and immunities which pertain to any other lands held by her In her demesne. I can perceive no good reason why any discrimination should be made, or why she should hold forfeited lands upon different principles and with diminished privileges from those applying to other subjects of similar character."

| $ 448] 2. Time When the Statute Commences to Run—a. General Rule. The statute begins to run against a grantee of the sovereignty only from the time when he acquires title; in view of the rule excluding the government from the operation of the

statute an occupancy prior to that time will not be deemed adverse and can have no effect to give title by adverse possession against grantees of the federal 53 or state governments. 64 The applications of this general rule, however, are not uniform, as will hereinafter appear.

[§ 449] b. Applications of Rule—(1) Introductory Statement. Since there is a difference of opinion as to just when the title of the federal or state government passes to a grantee 55 the cases do not agree in the application of the above stated general rule.

[4 450] (2) Grantees of the Federal Government—(a) Rule That Patent Must Issue—aa. In General. On the ground that the title of the United States does not pass until the issuance of a patent it is held by one line of cases that the statute runs against a purchaser from the federal government only from the date of his patent. 50

Obiter dictum

From Wikipedia, the free encyclopedia

An obiter dictum (plural obiter dicta , often referred to simply as dicta or obiter ) is Latin for a statement "said by the way." Merriam-Webster Online Dictionary gives obiter dictum three definitions:

"literally, something said [ dictum ] in passing [ obiter ] . . ."

"an incidental remark or observation"

"an incidental and collateral opinion that is uttered by a judge but is not binding"

In the third meaning, an obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision. In a court opinion, obiter dicta include, but are not limited to, words "introduced by way of illustration, or analogy or argument." [ 1 ] Unlike the rationes decidendi , obiter dicta are not the subject of the judicial decision, even if they happen to be correct statements of law. Under the doctrine of stare decisis , statements constituting obiter dicta are therefore not binding, although in some jurisdictions, such as England and Wales , they can be strongly persuasive.

An example of an instance where a court opinion may include obiter dicta is where a court rules that it lacks jurisdiction to hear a case or dismisses the case on a technicality. If the court in such a case offers opinions on the merits of the case, such opinions may constitute obiter dicta . Less clear-cut instances of obiter dicta occur where a judge makes a side comment in an opinion to provide context for other parts of the opinion, or makes a thorough exploration of a relevant area of law. Another example would be where the judge, in explaining his ruling, provides a hypothetical set of facts and explains how he or she believes the law would apply to those facts.

In reaching decisions, courts sometimes quote passages of obiter dicta found in the texts of the opinions from prior cases, with or without acknowledging the quoted passage's status as obiter dicta . A quoted passage of obiter dicta may become part of the holding or ruling in a subsequent case, depending on what the latter court actually decided and how that court treated the principle embodied in the quoted passage.

In other instances, obiter dicta can suggest an interpretation of law that has no bearing on the case at hand but might be useful in future cases. The most notable instance of such an occurrence is the history of the famous Footnote 4 to United States v. Carolene Products Co. (1938), which while rejecting use of the Due Process Clause to block most legislation suggested that the clause might be applied to strike down legislation dealing with questions of "fundamental right." This obiter dictum is generally considered to have led to the doctrine of strict scrutiny (and subsequently intermediate scrutiny ) in racial-, religious-, and sexual-discrimination cases, first articulated in Korematsu v. United States (1944).

obiter dictum in the whole decision of
Judge Ross is the following: "The power to absolutely
prevent the use of such waters for the objectionable purposes
necessarily includes the power to prescribe the terms and
conditions upon which they may be so used." (81 Fed. Rep.
254.) Taken in connection with the facts of the case, however,
this language would simply mean : "The power to absolutely
prevent the use of such waters for the objectionable
purposes necessarily includes the power to prescribe the
terms and conditions without which they mav not be so used."
P*"^~ The decision simply decides the constitutional right of the
government to protect the navigability of the streams by
closing down, through legislation, any hydraulic mine in
these watersheds which has not submitted itself to the jurisdiction
of the commission. The miner will not be heard
to say in resistance that he is being deprived of his property
without due process of law. That is settled, but that is all
that is settled, by the judicial construction thus far given to
the Act. Is the working of the Act reciprocal? The miner
is bound with hooks of steel; but how about the farmer is
he likewise bound? Is the State of California bound? For
the purposes of any miner who desires to take his chances
under the act, the test of its constitutionality should be made
in some case brought against a company or person operating
under a duly obtained permit from the commission, and
not in a case against a company or person not operating
under such permit. Moreover, the test should be made in
defending a case where a farmer attacks the Act on the
ground that some constitutional right of his is being
abridged, or where the people of the State of California (on
relation of the Attorney-General) attack it on the ground
that some of their constitutional rights are being abridged,
by the action of a miner operating under a duly obtained permit
from the commission. No other test will settle the point.
The permit of the commission is already a finality as far as
the miner is concerned. Is it a finality as far as the farmer
and the State are -concerned? To settle this point, the ques

tions to be presented by a farmer or by the State, under the
two sets of cases above set forth, are the following : Is, or
is not, the act contrary to the provisions of the fifth amendment
to the Constitution of the United States? Does, or
does not, the act, directly or indirectly, deprive any person
of property without due process of law? Is the State deprived
by the Act of any right guaranteed to it in the Constitution
of the United States, or therein implied? It is contended
in behalf of the miner that neither the farmer nor the
State is deprived by the Act of any property or right without
due process of law; that, inasmuch as the commission has
complete jurisdiction to modify or revoke its permit at any
time, the farmer and the State are not necessarily deprived
by the Act of any "day in court" either may desire. Obviously,
unless the permit of the commission contemplated by
the Act is a finality as far as the courts are concerned, the
statute is an injury instead of a boon to the miner. If, however,
the permit is such a finality, and the Act is declared
constitutional in such a case as the above, then the farmer
and the State will, instead of going into the courts, have to
submit to the jurisdiction of the commission equally with
the miner, and the present threatened interminable litigation
would be at an end. The sooner the question is conclusively
settled the better, if there is to be any practical resumption
of hydraulic mining in the basins of the Sacramento and
San Joaquin Rivers.
In the basins of the Klamath and the Trinity, on the
other hand, hvdraulic mining is happily free. Nature, that
has handicapped the industry in one section of the State, has
favored it in another. These rivers are non-navigable, and
their banks for the most part precipitous. In these river
basins the only foe the industry has to contend with is the
occasional blackmailer. The courts have, however, mitigated
the power of these people for evil in two well-considered
decided cases. The rule of the decisions with reference
to hydraulic mining or navigable streams is separated
by a district cleavage from the rule with reference to non

navigable running streams. Judge Field, always the friend
of mining, in a decision of the Supreme Court of the
United States (Atchison vs. Peterson, 20 Wallace, 507), upheld
the refusal of the lower court (in Montana) to issue a
writ of injunction where a prior appropriator of water claimed
his water was injured by tailings from a hydraulic mine,
pointed out the extreme reluctance that should guide courts
in the issuance of this writ, and held that the question
whether, upon a petition or bill, asserting the prior rights of
the first appropriator have been invaded, a court of equity
will interfere to restrain the acts of the party complained of,
will depend on the character and extent of the injury alleged,
whether it be irremediable in its nature, whether an action at
law would afford adequate remedy, whether the parties are
able to respond for the damages resulting from the injury, and
other considerations.
Nor is the adjoining mine owner permitted to become a
dog in the manger. The Supreme Court of this State on
March 18, 1896, rendering its decision in the case of Jacob
vs. Day, (in Cal. 571), held that the use of water for the
purpose of carrying off the tailings, and the construction of
a ditch to aid therein, are as essential to the successful conduct
of hydraulic mining, as is the first use to which the water
is put in washing down the natural bank; and that the title
to an adjoining mine passes under patent from the United
States subject to the easement of the right of way for a ditch
used, in accordance with focal mining customs, as a tailrace
from a hydraulic mine across the patented ground prior to
the patent under the provisions of sections 2339 and 2340
of the Revised Statutes of the United States. That the easement
for the tailrace of a hydraulic mine is not an easement
for drainage within the meaning of section 2338 of the Revised
Statutes of the United States, excluding easements for
drainage from the purview of the act of Congress; but it is
a right to the use of water for mining purposes and for the
construction of ditches for such purposes within the meaning
of sections 2339 and 2340 of said statutes. That an ease

ment must be used in such a manner as to impose as slight
a burden and damage as possible; but where a tailrace of a
hydraulic mine is an easement upon patented mining ground,
the fact that the running of tailings through the tailrace in
the ordinary course of mining caused a small portion of the
ground alongside of the ditch to cave down and wash away,
and caused the tailrace to cut farther into the bedrock, but
without material and appreciable injury to the plaintiff, does
not entitle the owner of the patented ground to an injunction.
While the. law of mining has through enactment and decision
gradually become settled, until there remains but comparatively
few doubtful points to be still construed, and but
few amendments to better the legislation we already have,
mining itself in the great ledges of California is little more
than begun. It is true that, except where some ancient
river channel is occasionally found, the days of the placers
are passing with the romance and the glamour of
the Pioneers. Quartz mining is destined, however, to
be a permanent industry of the State. New men,
new methods, and increased facilities for operations have
made of it a recognized business instead of a gamble. The
history of the law of mining in the future will more and more
partake of the general features incident to litigation growing
out of other industries, and the element of uncertainty will
be confined more and more to that element of uncertainty
found in all litigation; that which is produced by the shifting
sands of evidence,
-JOHN F. DAVIS.
Jackson, Cal., Dec. 9, 1901

THE IDEAL LODE

TAKING, UNJUST - When the government acquires private property and fails to compensate an owner fairly. A taking can occur even without the actual physical seizure of property, such as when a government regulation has substantially devalued a property.

However, the state may enter property to enforce a valid land use regulation and destroy the offending property. This does not amount to a physical occupation even where the government's activity has a permanent effect. See Miller v. Schoene, 276 U.S. 272, 278 (1928) (permitting state entomologist to enter property and destroy diseased trees without affecting a taking); see also Bowditch v. Boston, 101 U.S. 16, 18-19 (1880) (denying compensation to owners whose houses were destroyed to prevent spread of fire); Shaffer, 576 P.2d at 824-25 (finding that city may enter to demolish substandard vacant building without compensating owner). "[T]he government affects a physical taking only when it requires the land owner to submit to the physical occupation of his land." Ferguson, 852 P.2d at 207.

"There is, of course, no federal Constitutional right to be free from changes in the land use laws." Lakeview Dev. Corp. v. City of South Lake Tahoe, 915 F.2d 1290 (9th Cir. 1990), cert. denied, 501 U.S. 1251 (1991); see also William C. Haas & Co. v. City & County of San Francisco, 605 F.2d 1117 (9th Cir. 1979), cert. denied, 445 U.S. 928 (1980). To establish a violation of their right to substantive due process, the Dodds must prove that the County's actions were "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926); see also Sinaloa Lake, 882 F.2d at 1407. A substantive due process claim requires proof that the interference with property rights was irrational and arbitrary. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976). Federal judicial interference with a local government zoning decision is proper only where the government body could have no legitimate reason for its decision. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981); Herrington, 834 F.2d at 1498 n. 7. There is no denial of substantive due process if the question as to whether the government acted arbitrarily or capriciously is "at least debatable." Clover Leaf Creamery Co., 449 U.S. at 469.

According to the Supreme Court, an unconstitutional taking consists of two components: taking of property and subsequent denial of just compensation. If a property owner receives just compensation through the process the government provides, the property owner does not have a taking claim. Id. at 194-95. Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985).

Inverse condemnation suits do not provide only the just compensation required under state law. Rather, such suits are a method of obtaining the just compensation required by the Fifth and Fourteenth Amendments. "A landowner is entitled to bring an action in inverse condemnation as a result of the self-executing character of the constitutional provision with respect to compensation." First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 315 (1987). "Claims for just compensation are grounded in the Constitution itself." Id. The state procedure Williamson County references is the procedure necessary to raise a federal taking claim in state court. Thus, under Williamson County, a taking claimant must litigate the federal constitutional claim through the processes the state provides.

The Supreme Court compared the process for making a claim against state or local governments to the process for making a claim against the federal government. A taking claim against the federal government is "premature until the property owner has availed itself of the process provided by the Tucker Act, 28 U.S.C. S 1491." Williamson County, 473 U.S. at 195 (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-1020 (1984)). The Tucker Act grants the U.S. Claims Court " `jurisdiction to render judgment upon any claim against the United States founded . . . upon the Constitution.' " Monsanto, 467 U.S. at 1017 (citing 28 U.S.C. S 1491). Thus, a Tucker Act taking claim is a claim for the just compensation required by the Fifth Amendment. The Supreme Court indicated that the Tucker Act procedure is analogous to the state proceedings claimants must follow to obtain just compensation from state and local governments. Williamson County, 473 U.S. at 195. Therefore, claimants following state procedures, like those utilizing the procedure established under the Tucker Act, should raise the federal just compensation requirement.

The decision in Williamson County, 473 U.S. 172 (1985), established two distinct requirements for taking claims under the rubric of ripeness:

First, "the government entity charged with implementing the regulations [must have] reached a final decision regarding the application of the regulations to the property at issue." 473 U.S. at 186.

Second, plaintiffs must have sought "compensation through the procedures provided by the State for obtaining such compensation." 473 U.S. at 195.

Both the final decision and compensation elements must be ripe before the claim is justiciable.

The final decision element is well-developed. Beginning with Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978), Agins v. City of Tiburon, 447 U.S. 255 (1980), and Hodel v. Virginia Surface Min. & Reclamation Ass'n. Inc., 452 U.S. 264 (1981), the Court has declined to rule on taking claims when it believed the property owner had not received a final and definitive decision from a land use regulatory body on development of the property at issue. In Williamson County, the taking claim was unripe because there remained the "potential for . . . administrative solutions." 473 U.S. at 187 (landowner failed to seek variances that could have allowed development).

In applying the final decision requirement, we have emphasized that local decision-makers must be given the opportunity to review at least one reasonable development proposal before we will consider ripe an as-applied challenge to a land use regulation. See, e.g., Southern Pacific Transp. Co. v. City of Los Angeles, 922 F.2d 498, 503 (9th Cir. 1990), cert. denied, 502 U.S. 943 (1991); Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1454 (9th Cir.), modified, 830 F.2d 968 (1987), cert. denied, 484 U.S. 1043 (1988). Finality also requires the local government to determine the type and intensity of development that land use regulations will allow on the subject property; this determination helps the court evaluate whether regulation of the subject property is excessive by identifying the extent of the regulation. See Herrington v. County of Sonoma, 857 F.2d at 570; Lai v. City and County of Honolulu, 841 F.2d 301, 303 (9th Cir.), cert. denied, 488 U.S. 994 (1988). Thus, a landowner may need to submit modified development proposals that satisfy the local government's objections to the development as initially proposed. Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1501 (9th Cir. 1990); MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 351-53 (1986).

Once the appropriate state agency reaches a final decision, the second ripeness requirement of Williamson County, the compensation element, is triggered. A federal court lacks jurisdiction to consider an as-applied regulatory taking claim until a determination is reached that "just compensation" has been denied by the state: [B]ecause the Fifth Amendment proscribes taking without just compensation, no constitutional violation occurs until just compensation has been denied. The nature of the constitutional right therefore requires that a property owner utilize procedures for obtaining compensation before bringing a Section 1983 action. 473 U.S. at 194 n. 13 (emphasis added).

In Williamson County, the Court concluded that Hamilton Bank's taking claim was not ripe because the Bank failed to utilize available state procedures: Under Tennessee law, a property owner may bring an inverse condemnation action to obtain just compensation for an alleged taking of property under certain circumstances . . . [U]ntil it has utilized that procedure, its taking claim is premature. Id. at 196-97. See also Jama Const. v. City of Los Angeles, 938 F.2d 1045, 1047-48 (9th Cir. 1991) (Dismissed as unripe where plaintiff "did not seek compensation through California procedures before bringing its federal action."), cert. denied, 503 U.S. 919 (1992); Bateson v. Geisse, 857 F.2d 1300, 1306 (9th Cir. 1988) (Because Montana recognizes inverse condemnation under the State Constitution, plaintiff must "pursue [that claim] before he can state a [federal ] taking claim.").

[I]f a state provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation. 473 U.S. at 195.

The central concern of ripeness is whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all. 13A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure S 3532 at 126 (citing Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 580 (1985)). If an issue can be illuminated by the development of a better factual record, a challenge may be unripe. See Pacific Legal Found. v. State Energy Resources Conservation and Dev. Comm'n, 659 F.2d 903, 915 (9th Cir. 1981), aff'd on other grounds, 461 U.S. 190 (1983); Hoehne, 870 F.2d at 532. The Fifth Amendment action is not more "developed" or "ripened " through presentation of the ultimate issue -- the failure of a state to provide adequate compensation for a taking -- to the state court. Indeed, such a requirement would not ripen the claim, rather it would extinguish the claim. See Palomar Mobilehome Park v. City of San Marcos, 989 F.2d 362 (9th Cir. 1993). Declining to hear a case on ripeness grounds is appropriate in situations where there is a reasonable prospect that the state courts may adjust state law to avoid or alter the constitutional question. 13A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure S 3532.5 at 126. But where deference rests instead "on the prospect that the state courts may entertain and decide the constitutional question, the issue of comity should be addressed directly without reliance on ripeness." Id.

The case law is clear that with the exception of federal habeas corpus review of state convictions under 28 U.S.C. S 2254, the determination of federal constitutional questions in state court systems may not be reviewed or repeated in the federal systems. The Court in Allen v. McCurry, 449 U.S. 90, 94, 104 (1980) said that"[t]he federal courts have traditionally adhered to the related doctrines of res judicata and collateral estoppel," excepting only "a federal writ of habeas corpus, the purpose of which is not to redress civil injury but to release the applicant from unlawful physical confinement."

[I]t has been established at least since Jacobs v. United States, 290 U.S. 13 (1933), that claims for just compensation are grounded in the Constitution itself. [The claim] rested upon the Fifth Amendment. Statutory recognition [by the state] was not necessary. [I]n the event of a taking, the compensation remedy is required by the Constitution. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315-16 (1987) (citations omitted).

Courts routinely have held that state procedures are considered inadequate only when state law provides no postdeprivation remedy for a taking. See Austin, 840 F.2d at 681 (Hawaiian courts and legislature had neither accepted nor rejected inverse condemnation action under Article I, Section 20 of the Hawaiian Constitution); Levald Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir. 1993) ("the unavailability of state remedies is the functional equivalent of the denial of just compensation"), cert. denied, 114 S. Ct. 924 (1994); see also New Port Largo, Inc. v. Monroe County, 985 F.2d 1488, 1493-94 (11th Cir.) ("Florida law . . . provided no post-deprivation remedy."), cert. denied, 114 S. Ct. 439 (1993).

§ 409. b. New assignment.—Yet in many actions tha plaintiff, who has alleged in his declaration a general wrong, may in his replication, after an evasive plea by the defendant, reduce that them in the defamatory sense imputed by the innuendo, or in any defamatory or actionable sense which the words themselves imported, asserted that the occasion was privileged, and also denied that the words were spoken of the plaintiff in the way of his profession or trade, whenever they were alleged to have been so spoken. But now this compendious mode of pleading is abolished. "Not Guilty" can no longer be pleaded in a civil action. The defendant must deal specifically with every allegation of which he docs not admit the truth.

(iv) Demurrers were abolished. It is true that either party is still allowed to place on the record an objection in point of law, which is very similar to the former demurrer. But there is this important difference. The party demurring could formerly insist on having his demurrer separately argued, which caused delay. But now such points of law are argued at the trial of the action; it is only by consent of the parties, or by order of the court or a judge, that the party objecting can have the point set down for argument and disposed of before the trial. And, as a rule, such an order will only be made where the decision of the point of law will practically render any trial of the action unnecessary.

(vi) Equitable relief is now granted, and equitable claims and defenses are now recognized, in all actions in the high court of justice.

(vii) Payment into court was for the first time allowed generally in all actions.

(viii) The right of setoff was preserved unchanged; but a very large power was given to a defendant to counterclaim. He can raise any kind of crossclaim against the plaintiff, and in some cases even against the plaintiff with others, subject only to the power of a master or judge to order the claim

[a] Good faith, as contemplated by the law of prescription, has relation to the actual existing state of the mind, whether so from Ignorance, skepticism, sophistry, delusion, or imbecility, and without regard to what it should be from good legal standards of law or reason. It is not necessary therefore that the person claiming prescription should have taken the instrument relied on as evidence of his title under such honest belief only as would be entertained by an ordinarily intelligent man that the paper would give him a good title. If such paper was in law color of title and was taken honestly and In good faith, the degree of intelligence with which this was done would be immaterial. It is the bona fides which is important and not the amount of knowledge or mental capacity constituting the basis thereof. Lee v.

"Ordinary intelligence might, upon bare inspection know that an apparent title was worthless; and if the bona fides of the holding were to be tested by that standard, many cases would doubtless occur where a person of a lower order of Intelligence, in his ignorance of law, would learn with surprise that he had occupied the land and held his color of title in bad faith, while he believed in fact that it was genuine and sufficient."

[b] Bad faith cannot be Imputed to a claimant (1) by reason of failure, for several years after execution, to record the deed which is claimed to give color of title, there being no statute requiring it (Rawson v. Fox, 65 111. 200); or (2) because the deed described the land conveyed as situated in a disputed territory (Cornelius v. Giberson, 25 N. J. L. 1); or (3) because the claimant, a mortgagee who purchased at foreclosure sale, filed an insufficient affidavit as a basis for service by publication (Reedy v. Camfield, 159 111. 254, 42 NE 833); or (4) because the claimant, a purchaser at a tax sale, failed to comply with the statutory requirements as to notice governing the execution of tax deeds (Duck Island Club v. Bexstead, 174 111. 435, 51 NE 831; Dalton v. Lucas, 63 111. 337. And see also Whitney v. Stevens, 89 111. 53): or (5) because the deed under which the claimant holds was the result of a sale by a trustee not made in strict conformity to law (Brady v. Walters, 55 Ga. 25); or (6) because It appeared from the recitals in the deed that the property was sold at a day later than that fixed by statute (Hardin v. Crate, 60 111. 215); or (7) because the grantee in a tax deed failed to give notice of his application therefor, rendering the deed ineffectual to establish paramount title (Jackson v. Larson, 24 Colo. A. 548, 136 P 81); or (8) because at the time land was purchased from a widow something was said as to the possibility of her deceased husband's children having some interest in the land (Weng-er v. Thompson, 128 Iowa 750, 105 NW 333)-; or (9) because the contract of purchase under which claimant held was a verbal one, and the decree enforcing It reversible for error, the grantee not being bound to know the legal effect of a verbal contract for land or that a decree enforcing It was erroneous (Sexson v. Barker, 172 111. 361, 50 NE 109 [crit and not foil Bowman v. Wettig, 39 111. 416]); or (10) because the deed under which claimant holds shows on its face that the grantor is a nonresident alien incapable of inheriting (Hughes v. Wyatt. 146 Iowa 392, 125 NW 334); or (11) where the claimant, being aware of an outstanding tax title, goes to the holder, shows him his deed, and declares his purpose to be perfectly fair with him, and Is inTermed by the latter that he has no knowledge of possessing any Interest n the property, and that, if he ascertains that he does, he will Inform the purchaser, but never does so (Clark v. Sexton. 122 Iowa 310, 98 NW 127).

FEDERAL SUPREME COURT RECOGNITION.

The Supreme Court of the United States gave full recognition
to the binding force of the local rules, regulations,
usages and customs before the sanction of federal statutory
enactment, and to the doctrine that they constitute the American
common law of mines.

As Justice Stone of the United States Supreme Court wrote in the 1930 case of Collie v Ferguson :

"Events subsequent to the seizure do not give rise to liens against a vessel in custodia legis ."

Oct. 23, 2010

A New York judge held former American International Group Inc. Chief Executive Maurice “Hank” Greenberg liable for damages on a reinsurance transaction that state Attorney General Andrew Cuomo said helped the insurer hide losses.

New York State Supreme Court Justice Charles Ramos also found former Chief Financial Officer Howard Smith liable on the transaction, which involved an entity called Capco Reinsurance Co. It was allegedly used to hide more than $200 million of losses from an auto warranty insurance program.

42 U.S.C. 9607 (l) Federal lien (1) In general All costs and damages for which a person is liable to the United States under subsection (a) of this section (other than the owner or operator of a vessel under paragraph (1) of subsection (a) of this section) shall constitute a lien in favor of the United States upon all real property and rights to such property which-- (A) belong to such person; and (B) are subject to or affected by a removal or remedial action. (2) Duration The lien imposed by this subsection shall arise at the later of the following: (A) The time costs are first incurred by the United States with respect to a response action under this chapter. (B) The time that the person referred to in paragraph (1) is provided (by certified or registered mail) written notice of potential liability. Such lien shall continue until the liability for the costs (or a judgment against the person arising out of such liability) is satisfied or becomes unenforceable through operation of the statute of limitations provided in section 9613 of this title. (3) Notice and validity The lien imposed by this subsection shall be subject to the rights of any purchaser, holder of a security interest, or judgment lien creditor whose interest is perfected under applicable State law before notice of the lien has been filed in the appropriate office within the State (or county or other governmental subdivision), as designated by State law, in which the real property subject to the lien is located. Any such purchaser, holder of a security interest, or judgment lien creditor shall be afforded the same protections against the lien imposed by this subsection as are afforded under State law against a judgment lien which arises out of an unsecured obligation and which arises as of the time of the filing of the notice of the lien imposed by this subsection. If the State has not by law designated one office for the receipt of such notices of liens, the notice shall be filed in the office of the clerk of the United States district court for the district in which the real property is located. For purposes of this subsection, the terms ``purchaser'' and ``security interest'' shall have the definitions provided under section 6323(h) of title 26. 9609 (d) Awards The President may pay an award of up to $10,000 to any individual who provides information leading to the arrest and conviction of any person for a violation subject to a criminal penalty under this chapter, including any violation of section 9603 of this title and any other violation referred to in this section. The President shall, by regulation, prescribe criteria for such an award and may pay any award under this subsection from the Fund, as provided in section 9611 of this title.

9613

(f) Contribution (1) Contribution Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title. (2) Settlement A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement. (3) Persons not party to settlement (A) If the United States or a State has obtained less than complete relief from a person who has resolved its liability to the United States or the State in an administrative or judicially approved settlement, the United States or the State may bring an action against any person who has not so resolved its liability. (B) A person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not party to a settlement referred to in paragraph (2). (C) In any action under this paragraph, the rights of any person who has resolved its liability to the United States or a State shall be subordinate to the rights of the United States or the State. Any contribution action brought under this paragraph shall be governed by Federal law. (2) Actions for recovery of costs An initial action for recovery of the costs referred to in section 9607 of this title must be commenced-- (A) for a removal action, within 3 years after completion of the removal action, except that such cost recovery action must be brought within 6 years after a determination to grant a waiver under section 9604(c)(1)(C) of this title for continued response action; and (B) for a remedial action, within 6 years after initiation of physical on-site construction of the remedial action, except that, if the remedial action is initiated within 3 years after the completion of the removal action, costs incurred in the removal action may be recovered in the cost recovery action brought under this subparagraph. In any such action described in this subsection, the court shall enter a declaratory judgment on liability for response costs or damages that will be binding on any subsequent action or actions to recover further response costs or damages. A subsequent action or actions under section 9607 of this title for further response costs at the vessel or facility may be maintained at any time during the response action, but must be commenced no later than 3 years after the date of completion of all response action. Except as otherwise provided in this paragraph, an action may be commenced under section 9607 of this title for recovery of costs at any time after such costs have been incurred.

(3) Contribution No action for contribution for any response costs or damages may be commenced more than 3 years after-- (A) the date of judgment in any action under this chapter for recovery of such costs or damages, or (B) the date of an administrative order under section 9622(g) of this title (relating to de minimis settlements) or 9622(h) of this title (relating to cost recovery settlements) or entry of a judicially approved settlement with respect to such costs or damages.

(h) Timing of review No Federal court shall have jurisdiction under Federal law other than under section 1332 of title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title, in any action except one of the following: (1) An action under section 9607 of this title to recover response costs or damages or for contribution. (2) An action to enforce an order issued under section 9606(a) of this title or to recover a penalty for violation of such order. (3) An action for reimbursement under section 9606(b)(2) of this title. (4) An action under section 9659 of this title (relating to citizens suits) alleging that the removal or remedial action taken under section 9604 of this title or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site. (5) An action under section 9606 of this title in which the United States has moved to compel a remedial action. (i) Intervention In any action commenced under this chapter or under the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.] in a court of the United States , any person may intervene as a matter of right when such person claims an interest relating to the subject of the action and is so situated that the disposition of the action may, as a practical matter, impair or impede the person's ability to protect that interest, unless the President or the State shows that the person's interest is adequately represented by existing parties. (j) Judicial review (1) Limitation In any judicial action under this chapter, judicial review of any issues concerning the adequacy of any response action taken or ordered by the President shall be limited to the administrative record. Otherwise applicable principles of administrative law shall govern whether any supplemental materials may be considered by the court. (2) Standard In considering objections raised in any judicial action under this chapter, the court shall uphold the President's decision in selecting the response action unless the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious or otherwise not in accordance with law. (3) Remedy If the court finds that the selection of the response action was arbitrary and capricious or otherwise not in accordance with law, the court shall award (A) only the response costs or damages that are not inconsistent with the national contingency plan, and (B) such other relief as is consistent with the National Contingency Plan. (4) Procedural errors In reviewing alleged procedural errors, the court may disallow costs or damages only if the errors were so serious and related to matters of such central relevance to the action that the action would have been significantly changed had such errors not been made. (l) Notice of actions Whenever any action is brought under this chapter in a court of the United States by a plaintiff other than the United States , the plaintiff shall provide a copy of the complaint to the Attorney General of the United States and to the Administrator of the Environmental Protection Agency.

(b) Final plan Notice of the final remedial action plan adopted shall be published and the plan shall be made available to the public before commencement of any remedial action. Such final plan shall be accompanied by a discussion of any significant changes (and the reasons for such changes) in the proposed plan and a response to each of the significant comments, criticisms, and new data submitted in written or oral presentations under subsection (a) of this section. (c) Explanation of differences. After adoption of a final remedial action plan-- (1) if any remedial action is taken, (2) if any enforcement action under section 9606 of this title is taken, or (3) if any settlement or consent decree under section 9606 of this title or section 9622 of this title is entered into, and if such action, settlement, or decree differs in any significant respects from the final plan, the President or the State shall publish an explanation of the significant differences and the reasons such changes were made.

(e) Grants for technical assistance (1) Authority Subject to such amounts as are provided in appropriations Acts and in accordance with rules promulgated by the President, the President may make grants available to any group of individuals which may be affected by a release or threatened release at any facility which is listed on the National Priorities List under the National Contingency Plan. Such grants may be used to obtain technical assistance in interpreting information with regard to the nature of the hazard, remedial investigation and feasibility study, record of decision, remedial design, selection and construction of remedial action, operation and maintenance, or removal action at such facility. (2) Amount The amount of any grant under this subsection may not exceed $50,000 for a single grant recipient. The President may waive the $50,000 limitation in any case where such waiver is necessary to carry out the purposes of this subsection. Each grant recipient shall be required, as a condition of the grant, to contribute at least 20 percent of the total of costs of the technical assistance for which such grant is made. The President may waive the 20 percent contribution requirement if the grant recipient demonstrates financial need and such waiver is necessary to facilitate public participation in the selection of remedial action at the facility. Not more than one grant may be made under this subsection with respect to a single facility, but the grant may be renewed to facilitate public participation at all stages of remedial action. (f) Competition Response action contractors and subcontractors for program management, construction management, architectural and engineering, surveying and mapping, and related services shall be selected in accordance with title IX of the Federal Property and Administrative Services Act of 1949.\3\ The Federal selection procedures shall apply to appropriate contracts negotiated by all Federal governmental agencies involved in carrying out this chapter. Such procedures shall be followed by response action contractors and subcontractors.

9620

a) Application of chapter to Federal Government (1) In general Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title. Nothing in this section shall be construed to affect the liability of any person or entity under sections 9606 and 9607 of this title. a) Selection of remedial action The President shall select appropriate remedial actions determined to be necessary to be carried out under section 9604 of this title or secured under section 9606 of this title which are in accordance with this section and, to the extent practicable, the national contingency plan, and which provide for cost-effective response. In evaluating the cost effectiveness of proposed alternative remedial actions, the President shall take into account the total short- and long-term costs of such actions, including the costs of operation and maintenance for the entire period during which such activities will be required. (b) General rules (1) Remedial actions in which treatment which permanently and significantly reduces the volume, toxicity or mobility of the hazardous substances, pollutants, and contaminants is a principal element, are to be preferred over remedial actions not involving such treatment. The offsite transport and disposal of hazardous substances or contaminated materials without such treatment should be the least favored alternative remedial action where practicable treatment technologies are available. The President shall conduct an assessment of permanent solutions and alternative treatment technologies or resource recovery technologies that, in whole or in part, will result in a permanent and significant decrease in the toxicity, mobility, or volume of the hazardous substance, pollutant, or contaminant. In making such assessment, the President shall specifically address the long-term effectiveness of various alternatives. In assessing alternative remedial actions, the President shall, at a minimum, take into account: (A) the long-term uncertainties associated with land disposal; (B) the goals, objectives, and requirements of the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.]; (C) the persistence, toxicity, mobility, and propensity to bioaccumulate of such hazardous substances and their constituents; (D) short- and long-term potential for adverse health effects from human exposure; (E) long-term maintenance costs; (F) the potential for future remedial action costs if the alternative remedial action in question were to fail; and (G) the potential threat to human health and the environment associated with excavation, transportation, and redisposal, or containment. The President shall select a remedial action that is protective of human health and the environment, that is cost effective, and that utilizes permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable. If the President selects a remedial action not appropriate for a preference under this subsection, the President shall publish an explanation as to why a remedial action involving such reductions was not selected. (2) The President may select an alternative remedial action meeting the objectives of this subsection whether or not such action has been achieved in practice at any other facility or site that has similar characteristics. In making such a selection, the President may take into account the degree of support for such remedial action by parties interested in such site. (c) Review If the President selects a remedial action that results in any hazardous substances, pollutants, or contaminants remaining at the site, the President shall review such remedial action no less often than each 5 years after the initiation of such remedial action to assure that human health and the environment are being protected by the remedial action being implemented. In addition, if upon such review it is the judgment of the President that action is appropriate at such site in accordance with section 9604 or 9606 of this title, the President shall take or require such action. The President shall report to the Congress a list of facilities for which such review is required, the results of all such reviews, and any actions taken as a result of such reviews. (d) Degree of cleanup (1) Remedial actions selected under this section or otherwise required or agreed to by the President under this chapter shall attain a degree of cleanup of hazardous substances, pollutants, and contaminants released into the environment and of control of further release at a minimum which assures protection of human health and the environment. Such remedial actions shall be relevant and appropriate under the circumstances presented by the release or threatened release of such substance, pollutant, or contaminant. (2)(A) With respect to any hazardous substance, pollutant or contaminant that will remain onsite, if-- (i) any standard, requirement, criteria, or limitation under any Federal environmental law, including, but not limited to, the Toxic Substances Control Act [15 U.S.C. 2601 et seq.], the Safe Drinking Water Act [42 U.S.C. 300f et seq.], the Clean Air Act [42 U.S.C. 7401 et seq.], the Clean Water Act [33 U.S.C. 1251 et seq.], the Marine Protection, Research and Sanctuaries Act [16 U.S.C. 1431 et seq., 1447 et seq., 33 U.S.C. 1401 et seq., 2801 et seq.], or the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.]; or (ii) any promulgated standard, requirement, criteria, or limitation under a State environmental or facility siting law that is more stringent than any Federal standard, requirement, criteria, or limitation, including each such State standard, requirement, criteria, or limitation contained in a program approved, authorized or delegated by the Administrator under a statute cited in subparagraph (A), and that has been identified to the President by the State in a timely manner, is legally applicable to the hazardous substance or pollutant or contaminant concerned or is relevant and appropriate under the circumstances of the release or threatened release of such hazardous substance or pollutant or contaminant, the remedial action selected under section 9604 of this title or secured under section 9606 of this title shall require, at the completion of the remedial action, a level or standard of control for such hazardous substance or pollutant or contaminant which at least attains such legally applicable or relevant and appropriate standard, requirement, criteria, or limitation. Such remedial action shall require a level or standard of control which at least attains Maximum Contaminant Level Goals established under the Safe Drinking Water Act [42 U.S.C. 300f et seq.] and water quality criteria established under section 304 or 303 of the Clean Water Act [33 U.S.C. 1314, 1313], where such goals or criteria are relevant and appropriate under the circumstances of the release or threatened release. (B)(i) In determining whether or not any water quality criteria under the Clean Water Act [33 U.S.C. 1251 et seq.] is relevant and appropriate under the circumstances of the release or threatened release, the President shall consider the designated or potential use of the surface or groundwater, the environmental media affected, the purposes for which such criteria were developed, and the latest information available. (ii) For the purposes of this section, a process for establishing alternate concentration limits to those otherwise applicable for hazardous constituents in groundwater under subparagraph (A) may not be used to establish applicable standards under this paragraph if the process assumes a point of human exposure beyond the boundary of the facility, as defined at the conclusion of the remedial investigation and feasibility study, except where-- (I) there are known and projected points of entry of such groundwater into surface water; and (II) on the basis of measurements or projections, there is or will be no statistically significant increase of such constituents from such groundwater in such surface water at the point of entry or at any point where there is reason to believe accumulation of constituents may occur downstream; and (III) the remedial action includes enforceable measures that will preclude human exposure to the contaminated groundwater at any point between the facility boundary and all known and projected points of entry of such groundwater into surface water then the assumed point of human exposure may be at such known and projected points of entry. (C)(i) Clause (ii) of this subparagraph shall be applicable only in cases where, due to the President's selection, in compliance with subsection (b)(1) of this section, of a proposed remedial action which does not permanently and significantly reduce the volume, toxicity, or mobility of hazardous substances, pollutants, or contaminants, the proposed disposition of waste generated by or associated with the remedial action selected by the President is land disposal in a State referred to in clause (ii). (ii) Except as provided in clauses (iii) and (iv), a State standard, requirement, criteria, or limitation (including any State siting standard or requirement) which could effectively result in the statewide prohibition of land disposal of hazardous substances, pollutants, or contaminants shall not apply. (iii) Any State standard, requirement, criteria, or limitation referred to in clause (ii) shall apply where each of the following conditions is met: (I) The State standard, requirement, criteria, or limitation is of general applicability and was adopted by formal means. (II) The State standard, requirement, criteria, or limitation was adopted on the basis of hydrologic, geologic, or other relevant considerations and was not adopted for the purpose of precluding onsite remedial actions or other land disposal for reasons unrelated to protection of human health and the environment. (III) The State arranges for, and assures payment of the incremental costs of utilizing, a facility for disposition of the hazardous substances, pollutants, or contaminants concerned. (iv) Where the remedial action selected by the President does not conform to a State standard and the State has initiated a law suit against the Environmental Protection Agency prior to May 1, 1986, to seek to have the remedial action conform to such standard, the President shall conform the remedial action to the State standard. The State shall assure the availability of an offsite facility for such remedial action. (3) In the case of any removal or remedial action involving the transfer of any hazardous substance or pollutant or contaminant offsite, such hazardous substance or pollutant or contaminant shall only be transferred to a facility which is operating in compliance with section 3004 and 3005 of the Solid Waste Disposal Act [42 U.S.C. 6924, 6925] (or, where applicable, in compliance with the Toxic Substances Control Act [15 U.S.C. 2601 et seq.] or other applicable Federal law) and all applicable State requirements. Such substance or pollutant or contaminant may be transferred to a land disposal facility only if the President determines that both of the following requirements are met: (A) The unit to which the hazardous substance or pollutant or contaminant is transferred is not releasing any hazardous waste, or constituent thereof, into the groundwater or surface water or soil. (B) All such releases from other units at the facility are being controlled by a corrective action program approved by the Administrator under subtitle C of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.]. The President shall notify the owner or operator of such facility of determinations under this paragraph. (4) The President may select a remedial action meeting the requirements of paragraph (1) that does not attain a level or standard of control at least equivalent to a legally applicable or relevant and appropriate standard, requirement, criteria, or limitation as required by paragraph (2) (including subparagraph (B) thereof), if the President finds that-- (A) the remedial action selected is only part of a total remedial action that will attain such level or standard of control when completed; (B) compliance with such requirement at that facility will result in greater risk to human health and the environment than alternative options; (C) compliance with such requirements is technically impracticable from an engineering perspective; (D) the remedial action selected will attain a standard of performance that is equivalent to that required under the otherwise applicable standard, requirement, criteria, or limitation, through use of another method or approach; (E) with respect to a State standard, requirement, criteria, or limitation, the State has not consistently applied (or demonstrated the intention to consistently apply) the standard, requirement, criteria, or limitation in similar circumstances at other remedial actions within the State; or (F) in the case of a remedial action to be undertaken solely under section 9604 of this title using the Fund, selection of a remedial action that attains such level or standard of control will not provide a balance between the need for protection of public health and welfare and the environment at the facility under consideration, and the availability of amounts from the Fund to respond to other sites which present or may present a threat to public health or welfare or the environment, taking into consideration the relative immediacy of such threats. The President shall publish such findings, together with an explanation and appropriate documentation. (e) Permits and enforcement (1) No Federal, State, or local permit shall be required for the portion of any removal or remedial action conducted entirely onsite, where such remedial action is selected and carried out in compliance with this section. (2) A State may enforce any Federal or State standard, requirement, criteria, or limitation to which the remedial action is required to conform under this chapter in the United States district court for the district in which the facility is located. Any consent decree shall require the parties to attempt expeditiously to resolve disagreements concerning implementation of the remedial action informally with the appropriate Federal and State agencies. Where the parties agree, the consent decree may provide for administrative enforcement. Each consent decree shall also contain stipulated penalties for violations of the decree in an amount not to exceed $25,000 per day, which may be enforced by either the President or the State. Such stipulated penalties shall not be construed to impair or affect the authority of the court to order compliance with the specific terms of any such decree.

f) State involvement (1) The President shall promulgate regulations providing for substantial and meaningful involvement by each State in initiation, development, and selection of remedial actions to be undertaken in that State. The regulations, at a minimum, shall include each of the following: (A) State involvement in decisions whether to perform a preliminary assessment and site inspection. (B) Allocation of responsibility for hazard ranking system scoring. (C) State concurrence in deleting sites from the National Priorities List. (D) State participation in the long-term planning process for all remedial sites within the State. (E) A reasonable opportunity for States to review and comment on each of the following: (i) The remedial investigation and feasibility study and all data and technical documents leading to its issuance. (ii) The planned remedial action identified in the remedial investigation and feasibility study. (iii) The engineering design following selection of the final remedial action. (iv) Other technical data and reports relating to implementation of the remedy. (v) Any proposed finding or decision by the President to exercise the authority of subsection (d)(4) of this section. (F) Notice to the State of negotiations with potentially responsible parties regarding the scope of any response action at a facility in the State and an opportunity to participate in such negotiations and, subject to paragraph (2), be a party to any settlement. (G) Notice to the State and an opportunity to comment on the President's proposed plan for remedial action as well as on alternative plans under consideration. The President's proposed decision regarding the selection of remedial action shall be accompanied by a response to the comments submitted by the State, including an explanation regarding any decision under subsection (d)(4) of this section on compliance with promulgated State standards. A copy of such response shall also be provided to the State. (H) Prompt notice and explanation of each proposed action to the State in which the facility is located. Prior to the promulgation of such regulations, the President shall provide notice to the State of negotiations with potentially responsible parties regarding the scope of any response action at a facility in the State, and such State may participate in such negotiations and, subject to paragraph (2), any settlements. (2)(A) This paragraph shall apply to remedial actions secured under section 9606 of this title. At least 30 days prior to the entering of any consent decree, if the President proposes to select a remedial action that does not attain a legally applicable or relevant and appropriate standard, requirement, criteria, or limitation, under the authority of subsection (d)(4) of this section, the President shall provide an opportunity for the State to concur or not concur in such selection. If the State concurs, the State may become a signatory to the consent decree. (B) If the State does not concur in such selection, and the State desires to have the remedial action conform to such standard, requirement, criteria, or limitation, the State shall intervene in the action under section 9606 of this title before entry of the consent decree, to seek to have the remedial action so conform. Such intervention shall be a matter of right. The remedial action shall conform to such standard, requirement, criteria, or limitation if the State establishes, on the administrative record, that the finding of the President was not supported by substantial evidence. If the court determines that the remedial action shall conform to such standard, requirement, criteria, or limitation, the remedial action shall be so modified and the State may become a signatory to the decree. If the court determines that the remedial action need not conform to such standard, requirement, criteria, or limitation, and the State pays or assures the payment of the additional costs attributable to meeting such standard, requirement, criteria, or limitation, the remedial action shall be so modified and the State shall become a signatory to the decree. (C) The President may conclude settlement negotiations with potentially responsible parties without State concurrence. (3)(A) This paragraph shall apply to remedial actions at facilities owned or operated by a department, agency, or instrumentality of the United States . At least 30 days prior to the publication of the President's final remedial action plan, if the President proposes to select a remedial action that does not attain a legally applicable or relevant and appropriate standard, requirement, criteria, or limitation, under the authority of subsection (d)(4) of this section, the President shall provide an opportunity for the State to concur or not concur in such selection. If the State concurs, or does not act within 30 days, the remedial action may proceed. (B) If the State does not concur in such selection as provided in subparagraph (A), and desires to have the remedial action conform to such standard, requirement, criteria, or limitation, the State may maintain an action as follows: (i) If the President has notified the State of selection of such a remedial action, the State may bring an action within 30 days of such notification for the sole purpose of determining whether the finding of the President is supported by substantial evidence. Such action shall be brought in the United States district court for the district in which the facility is located. (ii) If the State establishes, on the administrative record, that the President's finding is not supported by substantial evidence, the remedial action shall be modified to conform to such standard, requirement, criteria, or limitation. (iii) If the State fails to establish that the President's finding was not supported by substantial evidence and if the State pays, within 60 days of judgment, the additional costs attributable to meeting such standard, requirement, criteria, or limitation, the remedial action shall be selected to meet such standard, requirement, criteria, or limitation. If the State fails to pay within 60 days, the remedial action selected by the President shall proceed through completion. (C) Nothing in this section precludes, and the court shall not enjoin, the Federal agency from taking any remedial action unrelated to or not inconsistent with such standard, requirement, criteria, or limitation.

(c) Effect of agreement (1) Liability Whenever the President has entered into an agreement under this section, the liability to the United States under this chapter of each party to the agreement, including any future liability to the United States , arising from the release or threatened release that is the subject of the agreement shall be limited as provided in the agreement pursuant to a covenant not to sue in accordance with subsection (f) of this section. A covenant not to sue may provide that future liability to the United States of a settling potentially responsible party under the agreement may be limited to the same proportion as that established in the original settlement agreement. Nothing in this section shall limit or otherwise affect the authority of any court to review in the consent decree process under subsection (d) of this section any covenant not to sue contained in an agreement under this section. In determining the extent to which the liability of parties to an agreement shall be limited pursuant to a covenant not to sue, the President shall be guided by the principle that a more complete covenant not to sue shall be provided for a more permanent remedy undertaken by such parties. (2) Actions against other persons If an agreement has been entered into under this section, the President may take any action under section 9606 of this title against any person who is not a party to the agreement, once the period for submitting a proposal under subsection (e)(2)(B) of this section has expired. Nothing in this section shall be construed to affect either of the following: (A) The liability of any person under section 9606 or 9607 of this title with respect to any costs or damages which are not included in the agreement. (B) The authority of the President to maintain an action under this chapter against any person who is not a party to the agreement. (d) Enforcement (1) Cleanup agreements (A) Consent decree Whenever the President enters into an agreement under this section with any potentially responsible party with respect to remedial action under section 9606 of this title, following approval of the agreement by the Attorney General, except as otherwise provided in the case of certain administrative settlements referred to in subsection (g) of this section, the agreement shall be entered in the appropriate United States district court as a consent decree. The President need not make any finding regarding an imminent and substantial endangerment to the public health or the environment in connection with any such agreement or consent decree. (B) Effect The entry of any consent decree under this subsection shall not be construed to be an acknowledgment by the parties that the release or threatened release concerned constitutes an imminent and substantial endangerment to the public health or welfare or the environment. Except as otherwise provided in the Federal Rules of Evidence, the participation by any party in the process under this section shall not be considered an admission of liability for any purpose, and the fact of such participation shall not be admissible in any judicial or administrative proceeding, including a subsequent proceeding under this section. (C) Structure The President may fashion a consent decree so that the entering of such decree and compliance with such decree or with any determination or agreement made pursuant to this section shall not be considered an admission of liability for any purpose. (2) Public participation (A) Filing of proposed judgment At least 30 days before a final judgment is entered under paragraph (1), the proposed judgment shall be filed with the court. (B) Opportunity for comment The Attorney General shall provide an opportunity to persons who are not named as parties to the action to comment on the proposed judgment before its entry by the court as a final judgment. The Attorney General shall consider, and file with the court, any written comments, views, or allegations relating to the proposed judgment. The Attorney General may withdraw or withhold its consent to the proposed judgment if the comments, views, and allegations concerning the judgment disclose facts or considerations which indicate that the proposed judgment is inappropriate, improper, or inadequate. (3) 9604(b) agreements Whenever the President enters into an agreement under this section with any potentially responsible party with respect to action under section 9604(b) of this title, the President shall issue an order or enter into a decree setting forth the obligations of such party. The United States district court for the district in which the release or threatened release occurs may enforce such order or decree. (e) Special notice procedures (1) Notice Whenever the President determines that a period of negotiation under this subsection would facilitate an agreement with potentially responsible parties for taking response action (including any action described in section 9604(b) of this title) and would expedite remedial action, the President shall so notify all such parties and shall provide them with information concerning each of the following: (A) The names and addresses of potentially responsible parties (including owners and operators and other persons referred to in section 9607(a) of this title), to the extent such information is available. (B) To the extent such information is available, the volume and nature of substances contributed by each potentially responsible party identified at the facility. (C) A ranking by volume of the substances at the facility, to the extent such information is available. The President shall make the information referred to in this paragraph available in advance of notice under this paragraph upon the request of a potentially responsible party in accordance with procedures provided by the President. The provisions of subsection (e) of section 9604 of this title regarding protection of confidential information apply to information provided under this paragraph. Disclosure of information generated by the President under this section to persons other than the Congress, or any duly authorized Committee thereof, is subject to other privileges or protections provided by law, including (but not limited to) those applicable to attorney work product. Nothing contained in this paragraph or in other provisions of this chapter shall be construed, interpreted, or applied to diminish the required disclosure of information under other provisions of this or other Federal or State laws. (2) Negotiation (A) Moratorium Except as provided in this subsection, the President may not commence action under section 9604(a) of this title or take any action under section 9606 of this title for 120 days after providing notice and information under this subsection with respect to such action. Except as provided in this subsection, the President may not commence a remedial investigation and feasibility study under section 9604(b) of this title for 90 days after providing notice and information under this subsection with respect to such action. The President may commence any additional studies or investigations authorized under section 9604(b) of this title, including remedial design, during the negotiation period. (B) Proposals Persons receiving notice and information under paragraph (1) of this subsection with respect to action under section 9606 of this title shall have 60 days from the date of receipt of such notice to make a proposal to the President for undertaking or financing the action under section 9606 of this title. Persons receiving notice and information under paragraph (1) of this subsection with respect to action under section 9604(b) of this title shall have 60 days from the date of receipt of such notice to make a proposal to the President for undertaking or financing the action under section 9604(b) of this title. (C) Additional parties If an additional potentially responsible party is identified during the negotiation period or after an agreement has been entered into under this subsection concerning a release or threatened release, the President may bring the additional party into the negotiation or enter into a separate agreement with such party. (3) Preliminary allocation of responsibility (A) In general The President shall develop guidelines for preparing nonbinding preliminary allocations of responsibility. In developing these guidelines the President may include such factors as the President considers relevant, such as: volume, toxicity, mobility, strength of evidence, ability to pay, litigative risks, public interest considerations, precedential value, and inequities and aggravating factors. When it would expedite settlements under this section and remedial action, the President may, after completion of the remedial investigation and feasibility study, provide a nonbinding preliminary allocation of responsibility which allocates percentages of the total cost of response among potentially responsible parties at the facility. (B) Collection of information To collect information necessary or appropriate for performing the allocation under subparagraph (A) or for otherwise implementing this section, the President may by subpoena require the attendance and testimony of witnesses and the production of reports, papers, documents, answers to questions, and other information that the President deems necessary. Witnesses shall be paid the same fees and mileage that are paid witnesses in the courts of the United States . In the event of contumacy or failure or refusal of any person to obey any such subpoena, any district court of the United States in which venue is proper shall have jurisdiction to order any such person to comply with such subpoena. Any failure to obey such an order of the court is punishable by the court as a contempt thereof. (C) Effect The nonbinding preliminary allocation of responsibility shall not be admissible as evidence in any proceeding, and no court shall have jurisdiction to review the nonbinding preliminary allocation of responsibility. The nonbinding preliminary allocation of responsibility shall not constitute an apportionment or other statement on the divisibility of harm or causation. (D) Costs The costs incurred by the President in producing the nonbinding preliminary allocation of responsibility shall be reimbursed by the potentially responsible parties whose offer is accepted by the President. Where an offer under this section is not accepted, such costs shall be considered costs of response. (E) Decision to reject offer Where the President, in his discretion, has provided a nonbinding preliminary allocation of responsibility and the potentially responsible parties have made a substantial offer providing for response to the President which he rejects, the reasons for the rejection shall be provided in a written explanation. The President's decision to reject such an offer shall not be subject to judicial review. (4) Failure to propose If the President determines that a good faith proposal for undertaking or financing action under section 9606 of this title has not been submitted within 60 days of the provision of notice pursuant to this subsection, the President may thereafter commence action under section 9604(a) of this title or take an action against any person under section 9606 of this title. If the President determines that a good faith proposal for undertaking or financing action under section 9604(b) of this title has not been submitted within 60 days after the provision of notice pursuant to this subsection, the President may thereafter commence action under section 9604(b) of this title. (5) Significant threats Nothing in this subsection shall limit the President's authority to undertake response or enforcement action regarding a significant threat to public health or the environment within the negotiation period established by this subsection. (6) Inconsistent response action When either the President, or a potentially responsible party pursuant to an administrative order or consent decree under this chapter, has initiated a remedial investigation and feasibility study for a particular facility under this chapter, no potentially responsible party may undertake any remedial action at the facility unless such remedial action has been authorized by the President. (f) Covenant not to sue (1) Discretionary covenants The President may, in his discretion, provide any person with a covenant not to sue concerning any liability to the United States under this chapter, including future liability, resulting from a release or threatened release of a hazardous substance addressed by a remedial action, whether that action is onsite or offsite, if each of the following conditions is met: (A) The covenant not to sue is in the public interest. (B) The covenant not to sue would expedite response action consistent with the National Contingency Plan under section 9605 of this title. (C) The person is in full compliance with a consent decree under section 9606 of this title (including a consent decree entered into in accordance with this section) for response to the release or threatened release concerned. (D) The response action has been approved by the President. (2) Special covenants not to sue In the case of any person to whom the President is authorized under paragraph (1) of this subsection to provide a covenant not to sue, for the portion of remedial action-- (A) which involves the transport and secure disposition offsite of hazardous substances in a facility meeting the requirements of sections 6924(c), (d), (e), (f), (g), (m), (o), (p), (u), and (v) and 6925(c) of this title, where the President has rejected a proposed remedial action that is consistent with the National Contingency Plan that does not include such offsite disposition and has thereafter required offsite disposition; or (B) which involves the treatment of hazardous substances so as to destroy, eliminate, or permanently immobilize the hazardous constituents of such substances, such that, in the judgment of the President, the substances no longer present any current or currently foreseeable future significant risk to public health, welfare or the environment, no byproduct of the treatment or destruction process presents any significant hazard to public health, welfare or the environment, and all byproducts are themselves treated, destroyed, or contained in a manner which assures that such byproducts do not present any current or currently foreseeable future significant risk to public health, welfare or the environment, the President shall provide such person with a covenant not to sue with respect to future liability to the United States under this chapter for a future release or threatened release of hazardous substances from such facility, and a person provided such covenant not to sue shall not be liable to the United States under section 9606 or 9607 of this title with respect to such release or threatened release at a future time. (3) Requirement that remedial action be completed A covenant not to sue concerning future liability to the United States shall not take effect until the President certifies that remedial action has been completed in accordance with the requirements of this chapter at the facility that is the subject of such covenant. (4) Factors In assessing the appropriateness of a covenant not to sue under paragraph (1) and any condition to be included in a covenant not to sue under paragraph (1) or (2), the President shall consider whether the covenant or condition is in the public interest on the basis of such factors as the following: (A) The effectiveness and reliability of the remedy, in light of the other alternative remedies considered for the facility concerned. (B) The nature of the risks remaining at the facility. (C) The extent to which performance standards are included in the order or decree. (D) The extent to which the response action provides a complete remedy for the facility, including a reduction in the hazardous nature of the substances at the facility. (E) The extent to which the technology used in the response action is demonstrated to be effective. (F) Whether the Fund or other sources of funding would be available for any additional remedial actions that might eventually be necessary at the facility. (G) Whether the remedial action will be carried out, in whole or in significant part, by the responsible parties themselves. (5) Satisfactory performance Any covenant not to sue under this subsection shall be subject to the satisfactory performance by such party of its obligations under the agreement concerned. (6) Additional condition for future liability (A) Except for the portion of the remedial action which is subject to a covenant not to sue under paragraph (2) or under subsection (g) of this section (relating to de minimis settlements), a covenant not to sue a person concerning future liability to the United States shall include an exception to the covenant that allows the President to sue such person concerning future liability resulting from the release or threatened release that is the subject of the covenant where such liability arises out of conditions which are unknown at the time the President certifies under paragraph (3) that remedial action has been completed at the facility concerned. (B) In extraordinary circumstances, the President may determine, after assessment of relevant factors such as those referred to in paragraph (4) and volume, toxicity, mobility, strength of evidence, ability to pay, litigative risks, public interest considerations, precedential value, and inequities and aggravating factors, not to include the exception referred to in subparagraph (A) if other terms, conditions, or requirements of the agreement containing the covenant not to sue are sufficient to provide all reasonable assurances that public health and the environment will be protected from any future releases at or from the facility. (C) The President is authorized to include any provisions allowing future enforcement action under section 9606 or 9607 of this title that in the discretion of the President are necessary and appropriate to assure protection of public health, welfare, and the environment. (g) De minimis settlements (1) Expedited final settlement Whenever practicable and in the public interest, as determined by the President, the President shall as promptly as possible reach a final settlement with a potentially responsible party in an administrative or civil action under section 9606 or 9607 of this title if such settlement involves only a minor portion of the response costs at the facility concerned and, in the judgment of the President, the conditions in either of the following subparagraph (A) or (B) are met: (A) Both of the following are minimal in comparison to other hazardous substances at the facility: (i) The amount of the hazardous substances contributed by that party to the facility. (ii) The toxic or other hazardous effects of the substances contributed by that party to the facility. (B) The potentially responsible party-- (i) is the owner of the real property on or in which the facility is located; (ii) did not conduct or permit the generation, transportation, storage, treatment, or disposal of any hazardous substance at the facility; and (iii) did not contribute to the release or threat of release of a hazardous substance at the facility through any action or omission. This subparagraph (B) does not apply if the potentially responsible party purchased the real property with actual or constructive knowledge that the property was used for the generation, transportation, storage, treatment, or disposal of any hazardous substance. (2) Covenant not to sue The President may provide a covenant not to sue with respect to the facility concerned to any party who has entered into a settlement under this subsection unless such a covenant would be inconsistent with the public interest as determined under subsection (f) of this section. (3) Expedited agreement The President shall reach any such settlement or grant any such covenant not to sue as soon as possible after the President has available the information necessary to reach such a settlement or grant such a covenant. (4) Consent decree or administrative order A settlement under this subsection shall be entered as a consent decree or embodied in an administrative order setting forth the terms of the settlement. In the case of any facility where the total response costs exceed $500,000 (excluding interest), if the settlement is embodied as an administrative order, the order may be issued only with the prior written approval of the Attorney General. If the Attorney General or his designee has not approved or disapproved the order within 30 days of this referral, the order shall be deemed to be approved unless the Attorney General and the Administrator have agreed to extend the time. The district court for the district in which the release or threatened release occurs may enforce any such administrative order. (5) Effect of agreement A party who has resolved its liability to the United States under this subsection shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially responsible parties unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement. (6) Settlements with other potentially responsible parties Nothing in this subsection shall be construed to affect the authority of the President to reach settlements with other potentially responsible parties under this chapter. (7) Reduction in settlement amount based on limited ability to pay (A) In general The condition for settlement under this paragraph is that the potentially responsible party is a person who demonstrates to the President an inability or a limited ability to pay response costs. (B) Considerations In determining whether or not a demonstration is made under subparagraph (A) by a person, the President shall take into consideration the ability of the person to pay response costs and still maintain its basic business operations, including consideration of the overall financial condition of the person and demonstrable constraints on the ability of the person to raise revenues. (C) Information A person requesting settlement under this paragraph shall promptly provide the President with all relevant information needed to determine the ability of the person to pay response costs. (D) Alternative payment methods If the President determines that a person is unable to pay its total settlement amount at the time of settlement, the President shall consider such alternative payment methods as may be necessary or appropriate. (8) Additional conditions for expedited settlements (A) Waiver of claims The President shall require, as a condition for settlement under this subsection, that a potentially responsible party waive all of the claims (including a claim for contribution under this chapter) that the party may have against other potentially responsible parties for response costs incurred with respect to the facility, unless the President determines that requiring a waiver would be unjust. (B) Failure to comply The President may decline to offer a settlement to a potentially responsible party under this subsection if the President determines that the potentially responsible party has failed to comply with any request for access or information or an administrative subpoena issued by the President under this chapter or has impeded or is impeding, through action or inaction, the performance of a response action with respect to the facility. (C) Responsibility to provide information and access A potentially responsible party that enters into a settlement under this subsection shall not be relieved of the responsibility to provide any information or access requested in accordance with subsection (e)(3)(B) of this section or section 9604(e) of this title. (9) Basis of determination If the President determines that a potentially responsible party is not eligible for settlement under this subsection, the President shall provide the reasons for the determination in writing to the potentially responsible party that requested a settlement under this subsection. (10) Notification As soon as practicable after receipt of sufficient information to make a determination, the President shall notify any person that the President determines is eligible under paragraph (1) of the person's eligibility for an expedited settlement. (11) No judicial review A determination by the President under paragraph (7), (8), (9), or (10) shall not be subject to judicial review. (12) Notice of settlement After a settlement under this subsection becomes final with respect to a facility, the President shall promptly notify potentially responsible parties at the facility that have not resolved their liability to the United States of the settlement. (h) Cost recovery settlement authority (1) Authority to settle The head of any department or agency with authority to undertake a response action under this chapter pursuant to the national contingency plan may consider, compromise, and settle a claim under section 9607 of this title for costs incurred by the United States Government if the claim has not been referred to the Department of Justice for further action. In the case of any facility where the total response costs exceed $500,000 (excluding interest), any claim referred to in the preceding sentence may be compromised and settled only with the prior written approval of the Attorney General. (2) Use of arbitration Arbitration in accordance with regulations promulgated under this subsection may be used as a method of settling claims of the United States where the total response costs for the facility concerned do not exceed $500,000 (excluding interest). After consultation with the Attorney General, the department or agency head may establish and publish regulations for the use of arbitration or settlement under this subsection. (3) Recovery of claims If any person fails to pay a claim that has been settled under this subsection, the department or agency head shall request the Attorney General to bring a civil action in an appropriate district court to recover the amount of such claim, plus costs, attorneys' fees, and interest from the date of the settlement. In such an action, the terms of the settlement shall not be subject to review. (4) Claims for contribution A person who has resolved its liability to the United States under this subsection shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement shall not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement. (i) Settlement procedures (1) Publication in Federal Register At least 30 days before any settlement (including any settlement arrived at through arbitration) may become final under subsection (h) of this section, or under subsection (g) of this section in the case of a settlement embodied in an administrative order, the head of the department or agency which has jurisdiction over the proposed settlement shall publish in the Federal Register notice of the proposed settlement. The notice shall identify the facility concerned and the parties to the proposed settlement. (2) Comment period For a 30-day period beginning on the date of publication of notice under paragraph (1) of a proposed settlement, the head of the department or agency which has jurisdiction over the proposed settlement shall provide an opportunity for persons who are not parties to the proposed settlement to file written comments relating to the proposed settlement. (3) Consideration of comments The head of the department or agency shall consider any comments filed under paragraph (2) in determining whether or not to consent to the proposed settlement and may withdraw or withhold consent to the proposed settlement if such comments disclose facts or considerations which indicate the proposed settlement is inappropriate, improper, or inadequate. (j) Natural resources (1) Notification of trustee Where a release or threatened release of any hazardous substance that is the subject of negotiations under this section may have resulted in damages to natural resources under the trusteeship of the United States , the President shall notify the Federal natural resource trustee of the negotiations and shall encourage the participation of such trustee in the negotiations. (2) Covenant not to sue An agreement under this section may contain a covenant not to sue under section 9607(a)(4)(C) of this title for damages to natural resources under the trusteeship of the United States resulting from the release or threatened release of hazardous substances that is the subject of the agreement, but only if the Federal natural resource trustee has agreed in writing to such covenant. The Federal natural resource trustee may agree to such covenant if the potentially responsible party agrees to undertake appropriate actions necessary to protect and restore the natural resources damaged by such release or threatened release of hazardous substances. (k) Section not applicable to vessels The provisions of this section shall not apply to releases from a vessel. (l) Civil penalties A potentially responsible party which is a party to an administrative order or consent decree entered pursuant to an agreement under this section or section 9620 of this title (relating to Federal facilities) or which is a party to an agreement under section 9620 of this title and which fails or refuses to comply with any term or condition of the order, decree or agreement shall be subject to a civil penalty in accordance with section 9609 of this title. (m) Applicability of general principles of law In the case of consent decrees and other settlements under this section (including covenants not to sue), no provision of this chapter shall be construed to preclude or otherwise affect the applicability of general principles of law regarding the setting aside or modification of consent decrees or other settlements.

Sec. 9625. Section 6921(b)(3)(A)(i) waste Sec. 9657. Separability; contribution If any provision of this chapter, or the application of any provision of this chapter to any person or circumstance, is held invalid, the application of such provision to other persons or circumstances and the remainder of this chapter shall not be affected thereby. If an administrative settlement under section 9622 of this title has the effect of limiting any person's right to obtain contribution from any party to such settlement, and if the effect of such limitation would constitute a taking without just compensation in violation of the fifth amendment of the Constitution of the United States, such person shall not be entitled, under other laws of the United States , to recover compensation from the United States for such taking, but in any such case, such limitation on the right to obtain contribution shall be treated as having no force and effect. Sec. 9628. State response programs

Sec. 9659. Citizens suits (a) Authority to bring civil actions Except as provided in subsections (d) and (e) of this section and in section 9613(h) of this title (relating to timing of judicial review), any person may commence a civil action on his own behalf-- (1) against any person (including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter (including any provision of an agreement under section 9620 of this title, relating to Federal facilities); or (2) against the President or any other officer of the United States (including the Administrator of the Environmental Protection Agency and the Administrator of the ATSDR) where there is alleged a failure of the President or of such other officer to perform any act or duty under this chapter, including an act or duty under section 9620 of this title (relating to Federal facilities), which is not discretionary with the President or such other officer. Paragraph (2) shall not apply to any act or duty under the provisions of section 9660 of this title (relating to research, development, and demonstration). (b) Venue (1) Actions under subsection (a)(1) Any action under subsection (a)(1) of this section shall be brought in the district court for the district in which the alleged violation occurred. (2) Actions under subsection (a)(2) Any action brought under subsection (a)(2) of this section may be brought in the United States District Court for the District of Columbia . (c) Relief The district court shall have jurisdiction in actions brought under subsection (a)(1) of this section to enforce the standard, regulation, condition, requirement, or order concerned (including any provision of an agreement under section 9620 of this title), to order such action as may be necessary to correct the violation, and to impose any civil penalty provided for the violation. The district court shall have jurisdiction in actions brought under subsection (a)(2) of this section to order the President or other officer to perform the act or duty concerned. (d) Rules applicable to subsection (a)(1) actions (1) Notice No action may be commenced under subsection (a)(1) of this section before 60 days after the plaintiff has given notice of the violation to each of the following: (A) The President. (B) The State in which the alleged violation occurs. (C) Any alleged violator of the standard, regulation, condition, requirement, or order concerned (including any provision of an agreement under section 9620 of this title). Notice under this paragraph shall be given in such manner as the President shall prescribe by regulation. (2) Diligent prosecution No action may be commenced under paragraph (1) of subsection (a) of this section if the President has commenced and is diligently prosecuting an action under this chapter, or under the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.] to require compliance with the standard, regulation, condition, requirement, or order concerned (including any provision of an agreement under section 9620 of this title). (e) Rules applicable to subsection (a)(2) actions No action may be commenced under paragraph (2) of subsection (a) of this section before the 60th day following the date on which the plaintiff gives notice to the Administrator or other department, agency, or instrumentality that the plaintiff will commence such action. Notice under this subsection shall be given in such manner as the President shall prescribe by regulation. (f) Costs The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or the substantially prevailing party whenever the court determines such an award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure. (g) Intervention In any action under this section, the United States or the State, or both, if not a party may intervene as a matter of right. For other provisions regarding intervention, see section 9613 of this title. (h) Other rights This chapter does not affect or otherwise impair the rights of any person under Federal, State, or common law, except with respect to the timing of review as provided in section 9613(h) of this title or as otherwise provided in section 9658 of this title (relating to actions under State law). (i) Definitions The terms used in this section shall have the same meanings as when used in subchapter I of this chapter.

ANDERSON — Homeless veterans who have legal problems could get some much-needed help during this weekend's Stand Down at the Shasta District Fair grounds.

A special court is being established at the fifth annual Stand Down sponsored by the nonprofit North Valley Stand Down Association in which homeless Shasta County veterans can resolve misdemeanor and infraction offenses, as well as help to try to settle traffic ticket, child support and other issues.

Jim Richards, chairman of the North Valley Stand Down Association, said this is the first time the Shasta County Superior Court has gotten involved in the three-day event, which features a variety of free services for homeless north state veterans, including medical and dental care.

Court will be held inside a building, and not a tent, at the fairgrounds. Shasta County Superior Court Commissioner Jennifer Dollard will preside, accompanied by a court clerk, Senior Deputy District Attorney Kelly Kafel, Deputy Public Defender Dena Horton and Stacy Larson, a family law facilitator.

“We will try to help as best we can,” said Horton, who volunteered for the court duty and performed similar work at a previous Stand Down in Sacramento.

“We were pretty busy,” she said, adding she doesn't know what to expect at the Anderson event.

Superior Court Executive Officer Melissa Fowler-Bradley agrees.

“We might be flooded with people,” or business could be slow, she said.

“But we wanted to give it a try,” she said. “We're kind of testing it out.”

Such homeless veterans' courts have been held at other Stand Downs in California and the nation, Horton said, but they do not tackle felony or DUI issues due to their seriousness and complexity.

“It's just minor stuff,” Richards said.

The court convenes Friday, Horton said, adding that those who are ordered by Commissioner Dollard to perform community service may have to do that work, or at least a chunk of it, at the Stand Down.

“We really hope to help as many people as possible,” she said.

The Stand Down is being billed as “a hand up, not a hand out,” and offers a variety of services for veterans, including temporary shelter, food, clothing, counseling, hygiene comfort kits and medical and employment services.

Veterans with pets also could get help for their animal companions.

Anderson Veterinary Clinic will be available on a case-by-case basis to provide vaccinations and other services, an office spokeswoman said.

For more information about the Stand Down or to volunteer or donate, call Richards at 530-365-0342.

The Obama administration announced a $760 million settlement Tuesday to resolve charges by thousands of Native American farmers and ranchers who say that for decades the Agriculture Department discriminated against them in loan programs.

The farmers have fought for 11 years and through three administrations to resolve the case.

"The settlement announced today will allow USDA and the Native American farmers involved in the lawsuit to move forward and focus on the future," Attorney General Eric H. Holder Jr. said in a statement.

"This settlement marks a major turning point in the important relationship between Native Americans, our nation's first farmers, and the USDA," said lead plaintiffs' attorney Joseph M. Sellers, a partner at the Cohen Milstein Sellers & Toll law firm in Washington.

Under the agreement, the department would pay $680 million in damages and forgive $80 million of outstanding farm loan debt.

The federal government also agreed to create a Native American Farmer and Rancher Council to advise USDA, appoint a department ombudsman, provide more technical assistance to Native American borrowers and conduct a systematic review of farm loan program rules - all to improve access to farm aid programs.

Sellers credited the Obama administration with opening the door to talks after taking office and seeing "long-standing . . . and festering" problems in farm programs.

"With the entry of the new administration, we saw a decided change in the attitude of the government to this litigation," Sellers said. "Rather than kicking it down the road, they really seemed open to working with us."

The financial payments will not require approval by Congress but could be paid from a judgment fund maintained by the Justice Department.

"We have been waiting nearly three decades for this day to come," said plaintiff Marilyn Keepseagle, whose name along with that of her husband, George, leads the case. "This settlement will help thousands of Native Americans who are still farming and ranching."

A claims process will be publicized in rural and often remote Native American communities.

"Today's settlement can never undo wrongs that Native Americans may have experienced in past decades, but combined with the actions we at USDA are taking to address such wrongs, the settlement will provide some measure of relief to those alleging discrimination," Agriculture Secretary Tom Vilsack said. "The Obama administration is committed to closing the chapter on an unfortunate civil rights history at USDA and working to ensure our customers and employees are treated justly and equally."

Saturday, October 23, 2010

My curiosity was peaked when I read this snippet from The Columbia Daily Tribune about new educational facilities being built from EPA funding. I was curious in a previous post as to when and why the US State Department became involved in education issues; I now discovered an article telling how the EPA is funding two organizations to either build or update four area outdoor classrooms for four Columbia area schools.

I researched when the EPA became not only a regulatory agency, but when it started developing curriculum for schools. I found this site explaining the agency's role in education through yet another group, The National Environmental Education Foundation (NEEF) :

Chartered by Congress in 1990 to advance environmental knowledge and action.

The National Environmental Education Act of 1990 established the National Environmental Education Foundation as a complementary organization to the U.S. Environmental Protection Agency (EPA), extending its ability to foster environmental literacy in all segments of the American public as well as leveraging private funds that EPA, as a federal agency, could not access.

In the almost two decades since then, the annual appropriation we receive from the EPA's Office of Environmental Education has enabled us to tap millions more in private and other governmental funding. The strong relationship we've built with the EPA has allowed us to multiply our resources and deliver innovative education programs which encourage environmentally responsible behavior.

I think I got the answer to how/when the EPA became involved in education; now I ask the question, who is partnering with this foundation that our tax dollars support? What private funding can this agency access that the EPA cannot? There are numerous organizations listed on the site who partner with the NEEF, many that are familiar; the NEA, Toyota, National Arbor Day Society, American Academy of Pediatricians. Some may not be so familiar, and one in particular caught my curiosity; World Watch Institute.

On the site under the subheading "Transforming Cultures", I found these two paragraphs interesting:

Worldwatch Institute's Transforming Cultures project turns a critical eye to how we can shift today's consumer cultures toward cultures of sustainability. The key to this transformation will lie in harnessing institutions that play a central role in shaping society—such as the media, educational services, business, governments, traditions, and social movements—to instill this new cultural orientation.

The project also seeks to bring women into educational, economic, political and health equality with men. This will require the erosion of cultural norms that promote early and frequent childbearing and expanding women's capacity to choose when to bear children. Studies show that such advances slow and eventually end population growth, allowing for more sustainable development worldwide.

Gee. That sounds alot like Cass Sunstein's theory in " Nudge " doesn't it? Missouri Education Chris Nicastro based her proposal to Race to the Top on this theory; perhaps she is employing the current theory present throughout all the government entities; schools, the EPA, the Department of Education and the State Department. Here's an excerpt from the book's review:

Every day, we make decisions on topics ranging from personal investments to schools for our children to the meals we eat to the causes we champion. Unfortunately, we often choose poorly. The reason, the authors explain, is that, being human, we all are susceptible to various biases that can lead us to blunder. Our mistakes make us poorer and less healthy; we often make bad decisions involving education, personal finance, health care, mortgages and credit cards, the family, and even the planet itself.

Thaler and Sunstein invite us to enter an alternative world, one that takes our humanness as a given. They show that by knowing how people think, we can design choice environments that make it easier for people to choose what is best for themselves, their families, and their society. Using colorful examples from the most important aspects of life, Thaler and Sunstein demonstrate how thoughtful “choice architecture” can be established to nudge us in beneficial directions without restricting freedom of choice.

I have a few questions:

Who is designing these choice environments for us to make it easier us to choose what is best for us? The EPA? The Department of Education? World Watch Institute?

Is there an oxymoron in the "Nudge" description and the reality of what educational "transformation" really means? "Nudging" theoretically doesn't restrict our freedom of choice. Two points on this contention: One, Federal mandates in education take away choice. Two, read this sentence from World Watch again: The project also seeks to bring women into educational, economic, political and health equality with men. This will require the erosion of cultural norms that promote early and frequent childbearing and expanding women's capacity to choose when to bear children. World Watch can couch it in any language it chooses, however, it is very clear the intent is to eliminate cultural norms and insert its ideas and rules on how life is to be lived. The Institute has just turned it around by "expanding women's capacity to choose". No. The Institute wants to take away a woman's right to bear children whenever she chooses by "transforming the culture".

What does "harnessing institutions" mean? Read this paragraph again: Worldwatch Institute's Transforming Cultures project turns a critical eye to how we can shift today's consumer cultures toward cultures of sustainability. The key to this transformation will lie in harnessing institutions that play a central role in shaping society—such as the media, educational services, business, governments, traditions, and social movements—to instill this new cultural orientation. This doesn't sound like being "nudged in a beneficial direction" to me, it sounds like forced indoctrination of the media, schools, businesses, etc. Instilling new cultural orientation means controlling the message. This was almost successful until a whistle blower cast doubt on the veracity of the scientific data used in climate change data. Could this be why those opposed to Al Gore's theories of climate change are met with such hatred? Transformation of cultural traditions and social movements are included as well. Is this the reason on why conservative social family or religious structures are ridiculed?

Some sample EPA curriculum used in the lower grades is linked here. See if you can spot the harnessing of the educational service to children in these sheets. Al Gore's movie is still being highlighted for highschoolers even as much of his research data is questioned for its truthfulness. That nudging wasn't as successful as hoped.

I am suspect when these governmental agencies become so entwined in our lives and especially in the lives of our schoolchildren. I am also concerned about the partnership of outside agencies such as World Watch Institute with the EPA and NEEF. When common core standards are established (the harnessing and the nudging of information which has a distinct political agenda), what are you as a parent going to do? What choice do you have?

Oh, but I forgot...no worries! Remember as Cass Sunstein tells us,

Our mistakes make us poorer and less healthy; we often make bad decisions involving education, personal finance, health care, mortgages and credit cards, the family, and even the planet itself.

According to the theory and the actions of these governmental agencies, they just have to nudge us to live our lives in the way they deem beneficial to society and the world. We must nudge them back and tell them no. These are our children and our schools and our decisions.

NASDA Expresses Concern with EPA Water Strategy
USAgNet - 10/22/2010

The National Association of State Departments of Agriculture has commented on EPA's draft "Strategy for Achieving Clean Water," expressing concerns about the agency's stated goal of increasing the regulatory universe--particularly in regards to agriculture.

In its comments, NASDA took issue with EPA's stated goal of expanding jurisdiction of the Clean Water Act.

Additionally, the comments expressed concerns with EPA efforts to increase the number of CAFO's regulated, as well as its tactics related to the Chesapeake Bay and establishing Numeric Nutrient Criteria in places like Florida.

A group of farm organizations are also requesting that EPA withdraw the draft TMDL or, barring that, make public the models its scientists relied upon to develop it and allow for a comment period on the modeling formula.

NASDA Expresses Concern with EPA Water Strategy
USAgNet - 10/22/2010

The National Association of State Departments of Agriculture has commented on EPA's draft "Strategy for Achieving Clean Water," expressing concerns about the agency's stated goal of increasing the regulatory universe--particularly in regards to agriculture.

In its comments, NASDA took issue with EPA's stated goal of expanding jurisdiction of the Clean Water Act.

Additionally, the comments expressed concerns with EPA efforts to increase the number of CAFO's regulated, as well as its tactics related to the Chesapeake Bay and establishing Numeric Nutrient Criteria in places like Florida.

A group of farm organizations are also requesting that EPA withdraw the draft TMDL or, barring that, make public the models its scientists relied upon to develop it and allow for a comment period on the modeling formula.

NASDA Expresses Concern with EPA Water Strategy
USAgNet - 10/22/2010

The National Association of State Departments of Agriculture has commented on EPA's draft "Strategy for Achieving Clean Water," expressing concerns about the agency's stated goal of increasing the regulatory universe--particularly in regards to agriculture.

In its comments, NASDA took issue with EPA's stated goal of expanding jurisdiction of the Clean Water Act.

Additionally, the comments expressed concerns with EPA efforts to increase the number of CAFO's regulated, as well as its tactics related to the Chesapeake Bay and establishing Numeric Nutrient Criteria in places like Florida.

A group of farm organizations are also requesting that EPA withdraw the draft TMDL or, barring that, make public the models its scientists relied upon to develop it and allow for a comment period on the modeling formula.

NASDA Expresses Concern with EPA Water Strategy
USAgNet - 10/22/2010

The National Association of State Departments of Agriculture has commented on EPA's draft "Strategy for Achieving Clean Water," expressing concerns about the agency's stated goal of increasing the regulatory universe--particularly in regards to agriculture.

In its comments, NASDA took issue with EPA's stated goal of expanding jurisdiction of the Clean Water Act.

Additionally, the comments expressed concerns with EPA efforts to increase the number of CAFO's regulated, as well as its tactics related to the Chesapeake Bay and establishing Numeric Nutrient Criteria in places like Florida .

A group of farm organizations are also requesting that EPA withdraw the draft TMDL or, barring that, make public the models its scientists relied upon to develop it and allow for a comment period on the modeling formula.

Kentucky Coal Association Sues EPA
Posted Monday, October 18, 2010

The state's Energy and Environment Cabinet joins the KCA in challenging EPA's interim guidance for conductivity in streams.

The suit, filed in the U.S. District Court for the Eastern District of Kentucky in Pikeville, names the EPA and EPA Administrator Lisa Jackson as defendants.

Kentucky Gov. Steve Beshear directed the state's Energy and Environment Cabinet to join the KCA in the lawsuit.

“In late September of this year, the EPA continued its onslaught against Kentucky's coal industry by vetoing numerous KPDES (Kentucky Pollutant Discharge Elimination System) permits that the Kentucky Division of Environmental Protection (DEP) had proposed to issue for coal mining activities,” read a media release from the KCA.

“The EPA took this action notwithstanding the fact that it had approved the issuance of the same type of permit for nearly 30 mining activities as recently as six months ago, concluding that the permits were consistent with CWA requirements.”

Beshear said the EPA's decisions threaten to “end the responsible mining of coal and eliminate the jobs of an estimated 18,000 Kentucky miners who depend on mining for their livelihood.”

The legal action centers on the EPA's application of April 1 interim guidance that establishes benchmarks for electrical conductivity in streams below coal mining operations in Appalachia.

The agency has objected to the issuance of 11 Clean Water Act permits written by the Kentucky Division of Water, permits that are similar to some allowed earlier in the year, according to the media release from the governor's office.

“EPA is not allowing formal legal challenges to those specific permit objections until EPA itself re-writes and issues the permit to its satisfaction,” the release reads. “For individual (Clean Water Act) permits where the state is unable to resolve the EPA objection in the 90-day period allowed, EPA will become the permitting and enforcement authority for those mining operations for the life of that permitting action. EPA is under no timeframe to take any final action in response to their objection letter.”

Governmental Controls: Types of institutional controls that impose land or resource restrictions using the authority of an existing unit of government (e.g., state legislation, local ordinance, well drilling permit, etc.). NONE!

Consent Decree: Legal document approved by a judge that formalizes an agreement reached between EPA and companies, governments, or individuals associated with contamination at the sites (potentially responsible parties (PRPs)) through which PRPs will take certain actions to resolve the contamination at a Superfund site. NOT THIS PRP

[$ 512] (2) Adjoining Lots under One Inclosure. Although a tract may be subdivided into a number of smaller lots separated by partitions, possession of one may, nevertheless, be constructive possession of all if inclosed by a common fence. 00 This, it has been held, is true, although the title to the different lots may be derived from different sources. 01

Empowering Safe Lands & Watersheds

1. To invest with power, especially legal power or official authority. Stakeholder Meetings/CEQA

Iron Mountain Mine advancing the development of renewable energy on potentially uncontaminated land

LOCATION, location, location. Many Superfund sites have advantageous and desirable locations. Some federal, state, and local government agencies offer grants, loans, and tax incentives to encourage development and revitalization of contaminated and formerly contaminated properties and surrounding areas.
Superfund sites throughout the country have been transformed into major shopping centers, business parks, residential subdivisions, and recreational facilities. Many more Superfund sites are being revitalized for use by small businesses. A large number of Superfund sites are suitable for revitalization even while cleanup on the property progresses. (See http://www.epa.gov/superfund/ programs/recycle/ for more information on revitalization of Superfund sites). Integrating the reuse of a Superfund site into the cleanup can often occur smoothly, which minimizes future surprises regarding undiscovered contamination.

HOW DO I IDENTIFY ALL OF THE PARTIES I HAVE TO DEAL WITH TO BUY THE SITE OR A PROPERTY WITHIN THE SITE AND HOW IS EPA INVOLVED?
THERE is no simple solution to identify all of the parties associated with a Superfund site but the process begins with the current owner. As with the purchase of any property, negotiations to buy a Superfund site begin with the current owner who can be identified through property title or tax records. EPA rarely owns the site being cleaned up. Generally, EPA’s Regional offices may assist in addressing the following questions:
•
What is the current status of a site’s cleanup and what are EPA’s future anticipated actions?
•
Is the proposed redevelopment compatible with a site’s cleanup and with the existing and potential future property use restrictions? Note: EPA does not offer guarantees of compatibility.
•
Is the prospective purchaser aware of the applicable landowner liability protections under Superfund?
•
How can EPA work with the prospective purchaser to settle or resolve any EPA liens?7
EPA is willing to work with prospective purchasers to clarify a property’s cleanup status and potential liability issues including the existence and satisfaction of EPA liens and property use restrictions. States also have cleanup programs and prospective purchasers should contact the appropriate state environmental agency to make certain they are aware of planned or ongoing state-lead cleanup actions at the property.

We hereby execute our sovereign absolute authority which allows intervention as of right in any civil or administrative action to obtain remedies by any citizen having an interest which is or may be adversely affected; all citizen complaints submitted pursuant to the procedures specified in §123.26(b)(4); permissive intervention authorized by statute, rule, or regulation; October 14, 2010 Citizens seek to join suit over EPA mining rules

Identify the breakdowns in management that allowed actions prohibited by EPA ethics policies to occur and implement accountability.

Iron Mountain Mine remediation comprises a range of best practices that may be applied throughout the private remedy operations. The best management practices of green remediation provide potential means to improve waste management; conserve or preserve energy, fuel, water, and other natural resources; promote sustainable long-term stewardship; and reduce adverse impacts on the local community during and after remediation activities. Green remediation can also complement efforts to return the private site to productive use in a sustainable manner, such as utility-scale production of renewable energy, utility scale hydropower, utility scale photovoltaic, utility scale wind, utility scale biorefinery and biopower, etc..
Utilization of green remediation strategies within the scope of the private response help ensure a protective remedy. It may be possible to lessen the long-term negative effects of the governments previous actions on the site. With the presently operating removal action green remediation practices may be used to upgrade or optimize treatment systems.

In April 2009, the OIG identified 10 key management challenges for Fiscal Year 2009. Three of those challenges impact EPA's management and enforcement capability: 1 EPA's organization and infrastructure; 2 Oversight of delegations to States; and 3 Performance measurement.

Entities that acquire property and had no knowledge of the contamination at the time of purchase may be eligible for CERCLA’s third- party defense for certain purchasers of contaminated property. CERCLA §§ 107(b)(3), 101(35)(A)(i). This defense, added to CERCLA in the Superfund Amendments and Reauthorization Act of 1986 (Public Law 99-499), provides entities with an affirmative defense to liability if they conducted all appropriate inquiries prior to purchase and complied with other pre- and post-purchase requirements. The 2002 Brownfields Amendments partially amended the innocent purchaser defense by elaborating on the all appropriate inquiry requirement. See the “All Appropriate Inquiries” text box on page 17.
The innocent purchaser defense may provide liability protection to some owners of contaminated property -- especially those that purchased property prior to January 1, 2002, and are therefore ineligible for the bona fide prospective purchaser protection -- but generally most post-2002 prospective purchasers will not rely on this defense because of the requirement that the purchaser have no knowledge of contamination at the site.
Several of EPA’s guidance documents discuss the innocent purchaser third-party defense, including the Common Elements guidance, discussed below in Section II.A.5 beginning on page 21.

The synopsis for this grant opportunity is detailed below, following this paragraph. This synopsis contains all of the updates to this document that have been posted as of 03/23/2009 . If updates have been made to the opportunity synopsis, update information is provided below the synopsis.

If you would like to receive notifications of changes to the grant opportunity click send me change notification emails . The only thing you need to provide for this service is your email address. No other information is requested.

Any inconsistency between the original printed document and the disk or electronic document shall be resolved by giving precedence to the printed document.

Eligible Applicants

Unrestricted (i.e., open to any type of entity above), subject to any clarification in text field entitled "Additional Information on Eligibility"

Additional Information on Eligibility:

Agency Name

National Science Foundation

Description

The Environmental Implications of Emerging Technologies program provides support to develop and test the environmental effects of new technologies. Fundamental and basic research is sought to establish and understand outcomes as a result of the implementation of new technologies such as nanotechnology and biotechnology. The program also supports research on the development and refinement of sensors and sensor network technologies that can be used to measure a wide variety of physical, chemical, and biological properties of interest in characterizing, monitoring, and understanding environmental impacts.The program emphasizes engineering principles underlying technology impacts. Innovative production processes, waste reduction, recycling, and industrial ecology technologies are of interest. All of these have implications that would be relevant to this program. Current areas of support include: * Understanding and mitigating how new developments in nanotechnology and biotechnology will interact with the environment * Nanotechnology environmental, health, and safety implications and applications * Predictive methodology for the interaction of nanoparticles with the environment and with the human body, including predictive approaches for toxicity * Fate and transport of natural, engineered, and incidental (by-product) nanoparticles * Risk assessment and management of the effect of nanomaterials in the environment * Sensor and sensor network technologies as they relate to the measurement of these environmental implicationsCurrent areas of support for this program do not include biomedical and nanotoxicology topics involving clinical trials.All proposed research should be driven by engineering principles, and presented in an environmental health and safety or environmental sensor context. Proposals should include involvement of at least one engineering student.The duration of unsolicited awards is generally one to three years. The average annual award size for the program is $100,000. Small equipment proposals of less than $100,000 will also be considered and may be submitted during these windows. Any proposal received outside the announced dates will be returned without review.The duration of CAREER awards is five years. The submission deadline for Engineering CAREER proposals is in July every year. Please see the following URL for more information: http://www.nsf.gov/pubs/2008/nsf08051/nsf08051.jsp.Proposals for Conferences, Workshops, and Supplements may be submitted at any time, but must be discussed with the program director before submission.Grants for Rapid Response Research (RAPID) and EArly-concept Grants for Exploratory Research (EAGER) replace the SGER program. Please note that proposals of these types must be discussed with the program director before submission. Further details are available in the PAPPG download, available below. Please refer to the Proposal and Award Policies and Procedures Guide (PAPPG), January 2009, (NSF 09-1) when you prepare your proposal.

If you have difficulty accessing the full announcement electronically, please contact:

Synopsis Modification History

The following files represent the modifications to this synopsis with the changes noted within the documents. The list of files is arranged from newest to oldest with the newest file representing the current synopsis. Changed sections from the previous document are shown in a light grey background.

In Home Building & Loan Association v. Blaisdell 290 U.S. 398 (1934), the Supreme Court upheld a Minnesota law that temporarily restricted the ability of mortgage holders to foreclose. The law was enacted to prevent mass foreclosures during a time of economic hardship in America . The kind of contract modification performed by the law in question was arguably similar to the kind that the Framers intended to prohibit. The Supreme Court held that this law was a valid exercise of the state's Police Power . It found that the temporary nature of the contract modification and the emergency of the situation justified the law.. [ 18 ]

Further cases have refined this holding, differentiating between governmental interference with private contracts and interference with contracts entered into by the government. Succinctly, there is more scrutiny when the government modifies a contract to alter its own obligations. (See United States Trust Co. v. New Jersey , 431 U.S. 1 (1977).) [ 18 ]

Modification of Private Contracts

The Supreme Court laid out a three-part test for whether a law violates the Contract Clause in Energy Reserves Group v. Kansas Power & Light 459 U.S. 400 (1983). First, the state regulation must substantially impair a contractual relationship. Second, the State "must have a significant and legitimate purpose behind the regulation, such as the remedying of a broad and general social or economic problem." 459 U.S. at 411-13 Third, the law must be reasonable and appropriate for its intended purpose. This test is similar to rational basis review. [ 18 ]

Modification of Government Contracts

In United States Trust Co. v. New Jersey , the Supreme Court held that a higher level of scrutiny was needed for situations where laws modified the government's own contractual obligations. In this case, New Jersey had issued bonds to finance the World Trade Center and had contractually promised the bondholders that the collateral would not be used to finance money losing rail operations. Later, New Jersey attempted to modify law to allow financing of railway operations, and the bondholders successfully sued to prevent this from happening. [ 19 ]

"Mr. Chairman: EPA's ability to effectively manage, oversee, and enforce the environmental laws under its jurisdiction, including the Clean Water Act, has been impeded by several factors including its current organizational structure, how it oversees State delegated authorities, and limitations in performance measurements. On the 37th anniversary of the Clean Water Act, we believe that a recommitment to the protection of the nation's waters can be achieved by an EPA that is strategically aligned to uniformly enforce environmental statutes and provide consistent oversight of its Regions and State delegations. This will require a comprehensive review of EPA's current organization and a commitment to implement best practices."

Historically, though, the USDA's forecast for corn crops is still the third-largest ever.

Economists expect farmers to respond to high grain prices by planting millions more acres of corn and wheat , which should benefit sellers of seed and chemicals to farmers such as Monsanto Co. and DuPont Co. The larger threat comes from using other farmland for those commodities in a shortage in order to make up. This could in turn create another shortage.

VINDICATION OF FALSE CLAIMS, EPA ACTIONS ARE ARBITRARY AND CAPRICIOUS, AN ABUSE OF PROCESS AND DISCRETION, THE GOVERNMENTS CONDUCT IS INTENTIONAL AND MALICIOUS RECKLESS NEGLIGENT ENDANGERMENT WITH ULTERIOR MOTIVES.

IRON MOUNTAIN MINE IS NOT RESPONSIBLE FOR ANY HEAVY METAL CONTAMINATION OF THE SAN FRANCISCO BAY

COPPER COMES PRIMARILY FROM AUTOMOBILE BRAKE WEAR IN BAY AREA STORM WATER RUN-OFF AND BOAT PAINT

CADMIUM COMES FROM THE MOTH-BALL FLEETS FLAKING PAINT AND OLD BATTERIES

ZINC IS NOT POLLUTION, IT IS A NUTRIENT (LIKE COPPER)

IRON MOUNTAIN HAS NO MERCURY HALO, SO ASK YOUR DENTIST

KESWICK LAKE AND THE CABECERA DEL RIO DE BUENAVENTURA (OLD SACRAMENTO) TO REDBLUFF DAM HAVE THE SAFEST FISH TO EAT IN THE STATE OF CALIFORNIA

Administrative and National Policy Requirements
1.
A listing and description of general EPA Regulations applicable to the award of assistance agreements may be viewed at: http://www.epa.gov/ogd/AppKit/applicable_epa_regulations_and_description.htm.
2.
Executive Order 12372, Intergovernmental Review of Federal Programs, may be applicable to awards resulting from this announcement. Applicants selected for funding may be required to provide a copy of their proposal to their State Point of Contact (SPOC) for review, pursuant to Executive Order 12372, Intergovernmental Review of Federal Programs. This review is not required with the proposal and not all states require such a review.
3.
Applicable regulations include: 40 CFR Part 30 (Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations), 40 CFR Part 31 (Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments) and 40 CFR Part 40 (Research and Demonstration Grants). Applicable OMB Circulars include: OMB Circular A-21 (Cost Principles for Educational Institutions) relocated to 2 CFR Part 220, OMB Circular A-87 (Cost Principles for State, Local and Indian Tribal Governments) relocated to 2 CFR Part 225, OMB Circular A-102 (Grants and Cooperative Agreements With State and Local Governments), OMB Circular A-110 (Uniform Administrative Requirements for Grants and Other Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations) relocated to 2 CFR Part 215, and OMB Circular A-122, (Cost Principles for Non-Profit Organizations) relocated to 2 CFR Part 230

By THE ASSOCIATED PRESS Published: October 15, 2010

CHARLESTON, W.Va. (AP) -- The Environmental Protection Agency said Friday that it was following through with its year-old plan to revoke a crucial permit for West Virginia's largest mountaintop removal mine, saying the operation would cause irreversible damage to the environment and wildlife. Arch spokeswoman Kim Link said the company will defend its permit "vigorously." She warned that if EPA follows through on the veto, the state's economy and tax base will suffer. Arch planned to invest $250 million, create 250 well-paying jobs and generate tens of millions of dollars in tax revenues "in a region that desperately needs both," she said. Link said the ruling effectively puts every U.S. business on notice that a legally issued Clean Water Act permit "can be revoked at any time according to the whims of the federal government." "Clearly, such a development would have a chilling impact on future investment and job creation," she said.

"The Billion Dollar Settlement" Cashout Advance, Iron Mountain Mine Superfund
Cashout Advances are funds received by EPA, a state, or PRP under the terms of a
settlement agreement (e.g., consent decree) to finance response action costs at a specified
Superfund site. Under CERCLA Section 122(b)(3), cashout funds received by EPA are
placed in site-specific, interest bearing accounts known as special accounts and are used for
potential future work at such sites in accordance with the terms of the settlement agreement.
Funds placed in special accounts may be disbursed to PRPs, to states that take responsibility
for the site, or to other Federal agencies to conduct or finance response actions in lieu of EPA
without further appropriation by Congress. As of September 30, 2009 and 2008, cashout
advances are $572 million and $489 million as restated, respectively.

a private party may “recover expenses associated with cleaning up contaminated sites.” United States v. Atl. Research Corp., 551 U.S. 128, 131

MOAs Are Missing Key Regulatory Requirements
MOAs were missing key requirements of Title 40 CFR 123.24. MOA documents also lacked MOA-specific program regulations contained in Title 40 CFR 123.26 and 123.27. For each of the 46 criteria, OIG rated the MOA as a “0” (does not address this element), “1” (addresses the element in some way), or “2” (addresses the element verbatim or in synonymous language). Figure 2-1 shows that across all regulatory criteria, MOAs did not contain 39 percent of the criteria, and that 61 percent of regulatory criteria are either not addressed or only partially addressed. EPA should define the requirements for management control of a nationally consistent enforcement program, and then review each State MOA to determine which MOAs are adequate and which MOAs need to be revised.

MOAs did not address key regulatory requirements for MOA documents. For example, the CFR requires that States establish data management systems to support their compliance evaluation activities. Twenty percent of the MOAs did not contain any language about a data management system. This does not mean the State does not have such a system or that the system is not discussed in another document. However, because the primary, required document, the MOA, does not mention it, EPA cannot readily determine whether there is nationwide uniformity in data management systems.
MOAs also did not include a number of the additional regulatory program requirements contained in Title 40 CFR 123.26 and 123.27. These additional requirements correspond to the programmatic deficiencies that OECA identified in its first-round State Review Framework evaluations (data quality, identification of significant violations, the timeliness of enforcement actions, and penalties). For example, the CFR requires that States establish minimum civil penalty policies, such as the ability to assess at least a $5,000 penalty per day for each NPDES violation. The State Review Framework identified penalty calculation as a comprehensive weakness. Fifty-four percent of MOAs did not include any language about minimum civil penalty standards (i.e., received a score of “0” for this element). Only 1 of the 46 MOAs specified that the minimum penalty per day, per violation, would be $5,000 (a score of “2”).
MOAs most comprehensively addressed the MOA-specific regulations (CFR 123.24), containing these requirements 77 percent of the time. MOAs contained fewer requirements in the non-MOA-specific monitoring and inspections section (65 percent for CFR 123.26) and fewest in the enforcement section (36 percent for CFR 123.27). For example, 63 percent of the MOAs did not include language verifying that no other State enforcement agreement could override the MOA, as required by CFR 123.24(c). Eighty percent of MOAs did not note whether the State had the authority to enter any permitted facility (123.26(c)). Figure 2-2 shows how the percentage of missing regulations varied according to the CFR section under review.

The Act of September 28th, 1850, establishing
a District Court in the State, was it enacted by Congress
"that all the laws of the United States which are not locally
inapplicable shall have the same force and effect within the
said State of California as elsewhere within the United
States."

FREE MINING.

Though no general federal laws were extended by Congress
over the late acqusitions from Mexico* for more
than two years after the end of the war, the paramount title
to the public lands had vested in the federal government
by virtue of the provisions of the treaty of peace, and the
public land itself had become part of the public domain of
the United States. (The Supreme Court of California did
afterward, when first organized, in Hicks vs. Bell, 3 Cal., 219,
attempt by certain obiter dicta to put forth the doctrine of the
paramount title being in the State of California, but this
attempt at judicial legislation was soon after abandoned and
reversed.) The army of occupation, however, offered no
opposition to the invading army of prospectors. The miners
were in 1849 twenty years ahead of the railroad and the electric
telegraph, and the telephone had not yet been invented.
In the parlance of the times, the prospectors "had the drop on
the army." In Colonel Mason's unique report on the situation
which confronted him, discretion waits upon valor. "The
entire gold district," he wrote, "with few exceptions of grants
made some years ago by the Mexican authorities, is on land
belonging to the United States. It was a matter of serious
reflection with me how I could secure to the government
certain rents or fees for the privilege of procuring this gold;
but upon considering the large extent of the country, the
character of the people engaged, and the small scattered
force at my command, I am resolved not to interfere, but permit
all to work freely." It is not recorded whether the
resolute Colonel was conscious of the humor of his resolution.

"Persons who have not given this subject special attention,"
said Senator Stewart of Nevada, addressing the United
States Senate in support of the Bill of 1866, "can hardly
realize the wonderful results of this system of free mining.
The incentive to the pioneer held out by the reward of a gold
or silver mine, if he can find one, is magical upon the sanguine
temperament of the prospector. For near a quarter
of a century a race of men, constituting a majority by far of
all the miners of the West, patient of toil, hopeful of success,
deprived of the associations of home and family, have devoted
themselves, with untiring energy, to sinking deep
shafts, running tunnels thousands of feet in solid granite,
traversing deserts, climbing mountains, and enduring every
conceivable hardship and privation, exploring for mines, all
founded upon the idea that no change would be made in this
system that would deprive them of their hard-earned treasure.
Some of these have found valuable mines, and a sure
prospect of wealth and comfort when the appliances of
capital and machinery shall be brought to their aid. Others
have received no compensation but anticipation no reward
but hope. . ,>-:.; I assert, and no* one familiar with the
subject will question the fact, that the sand plains, alkaline
deserts, and dreary monuments of rock and sagebrush of the
great interior, would have been as worthless today as when
they were marked by geographers as the Great American
Desert, but for this system of free mining fostered by our own
neglect, and matured and perfected by our generous inaction."

CALIFORNIA COMMON LAW OF MINES.
The prospectors and miners, were, then, at the start,
simply trespassers upon the public lands as against the government
of the United States, with no laws to guide, restrain
or protect them, and with nothing to fear from, the military
authorities. They were equal to the occasion. "Finding
themselves far from the legal traditions and restraints of the
settled East," says the report of the Public Lands Commission
of 1880, "in a pathless wilderness, under the feverish

excitement of an industry as swift and full of chance as the
throwing of dice, the adventurers of 1849 spontaneously instituted
neighborhood or district codes of regulations, which
were simply meant to define and protect a brief possessory
ownership. The ravines and river bars which held the placer
gold were valueless for settlement or home-making, but were
splendid stakes to hold for a few short seasons and gamble
with nature for wealth or ruin.
"In the absence of State and Federal laws competent to
meet the novel industry, and with the inbred respect for
equitable adjustments of rights between man and man, which
is the inheritance of centuries of English common law, the
miners only sought to secure equitable rights and protection
from robbery by a simple agreement as to the maximum
size of a surface claim, trusting, with a well-founded confidence,
that no machinery was necessary to enforce their
regulations other than the swift, rough blows of public opinion.
The gold seekers were not long in realizing that the
source of the dust which had worked its way into the sands
and bars, and distributed its precious particles over the bed
rocks of rivers, was derived from solid quartz veins, which
were thin sheets of mineral material enclosed in the foundation
rocks of the country. Still in advance of any enactments
by legislature or congress, the common sense of the miners,
which had proved strong enough to govern with wisdom
the ownership of placer mines, rose to meet the question of
lode claims, and decreed that ownership should attach to the
thing of value, namely, the thin, sheet-like veins of quartz,
and that a claim should consist of a certain horizontal block
of the vein, however it might run, but extending indefinitely
downward with a strip of surface, on or embracing the vein's
outcrop, for the placing of necessary machinery and buildings.
Under this theory, the lode was the property, and the
surface became a mere easement.
"This early California theory of a mining claim, consisting
of a certain number of running feet of vein with a strip of land
covering the surface length of the claim, is the obvious foundation
for the federal legislation and present system of public

disposition and private ownership of the mineral lands west
of the Missouri River. Contrasted with this is the mode of
disposition of mineral-bearing- lands east of the Missouri
River, where the common law has been the one rule, and
where the surface tract has always carried with it all minerals
vertically below it.
"The great coal, iron, copper, lead, and zinc wealth east
of the Rocky Mountains, have all passed with the surface
titles, and there can be little doubt that if California had been
contiguous to the eastern metallic regions, and its mineral
development progressed naturally with the advance of home
making- settlements, the power of common law precedent
would have governed its whole mining history. But California
was one of those extraordinary historic exceptions
that defy precedent and create original modes of life and
law. And since the developers of the great precious metal
mining of the far West have for the most part swarmed out
of the California hive, California ideas have not only been
everywhere dominant over the field of industry, but have
stemmed the tide of federal land policy and given us a statute
book with English common law in force over half the land
and California common law ruling in the other."
"The discovery of gold in California/' says Justice Field,
speaking from, the Supreme Bench of the United States, "was
followed, as is well known, by an immense immigration into
the State, which increased its population within three or four
years from a few thousand to several hundred thousand. The
lands in which the precious metals were found belonged
to the United States, and were unsurveyed and not open
by law to occupation and settlement. Little was known of
them further than that they were situated in the Sierra Nevada
mountains. Into these mountains the emigrants in vast
numbers penetrated, occupying the ravines, gulches and canyons
and probing the earth in all directions for the precious
metals. Wherever they went they carried with them the love
of order and system of fair dealing which are the prominent
characteristics of our people. In every district which they occupied
they framed certain rules for their government, by

which the extent of ground they could severally hold for
mining was designated, their possessory right to such ground
secured and enforced, and contests between them either
avoided or determined. These rules boie a marked similarity,
varying in 'the several districts only according to the
extent and character of the mines; distinct provision being
made for different kinds of mining, such as placer mining,
quartz mining, and mining in drifts or tunnels. They all
recognized discovery, followed by appropriation, as the
foundation of the possessor's title, and development by working
as the condition of its retention. And they were so
framed as to secure to all comers within practicable limits
absolute equality of right and privilege in working the mines.
Nothing but such equality would have been tolerated by the
miners, who were emphatically the law-makers, as respects
mining upon the public lands in the State. The first appropriator
was everywhere held to have, within certain well-defined
limits, a better right than others to the claims taken up;
and in all controversies, except as against the government,
he was regarded as the original ownej;, from whom title was
to be traced. * * * These regulations and customs
were appealed to in controversies in the State Courts, and
received their sanction; and properties to the value of many
millions rested upon them. For eighteen years, from 1848
to 1866, the regulations and customs of miners, as enforced
and moulded by the Courts and sanctioned by the legislation
of the State, constituted the law governing property in mines
and in water on the public mineral lands."
Jennison vs. Kirk, 98 U. S. 453.
ORIGIN OF RULES AND REGULATIONS.
There is considerable difference of opinion whether these
rules and regulations were the spontaneous creation of the
miners of
"
'49 and the spring of '50." Mr. Gregory Yale,
in his valuable treatise on "Mining Claims and Water
Rights," contends that they are not, and claims that Senator
Stewart of Nevada, in his brilliant letter to Senator Ramsey,
of Minnesota, ascribes undeserved merit to the early miners

in pronouncing them the authors of the local rules and customs.
He does not, however, criticise the even more positive
language of Chief Justice Sanderson in the decision of the
case of Morton vs. Solambo Copper Mining Company, He
calls attention to the similarity between these rules and regulations
and certain features of the Mexican ordinances, of
the Spanish Code, of the regulations of the Stannary Convocations
among the tin bounders of Devon and Cornwall, and
of the High Peak Regulations for the lead mines of Derby.
He says in the earlier days of placer digging in California
the large influx of miners from the western coast of Mexico
and from South America dictated the system of work to
Americans; that the latter, with few exceptions from the gold
mines of North Carolina and Georgia, and from the lead
mines of Illinois and Wisconsin, were almost entirely inexperienced
in this branch of industry; that the Cornish miners
soon spread themselves through the State, and added largely
by their experience, practical sense, and industrious habits,
in bringing the code into something like shape. With all
deference due to any^ opinion expressed by Mr. Yale, it
appears to me that he has in this chapter failed sometimes to
distinguish between the practical work in mining taught the
pioneers by their Mexican, Chilenian and Cornish associates
and their comrades from the southern gold, and western lead
states, and the framing of -rules and regulations. The hints
and suggestions on the pan and rocker and long torn and
sluice do not necessarily include instructions on a code of
mining in a situation absolutely as novel to the persons from
whom they learned how to mine as it was to the pioneers
themselves. The mining land in North Carolina, Georgia,
Illinois and Wisconsin is all held under principles founded on
the common law of England. Nor is it necessary to hold
with Mr. Yale and General Halleck that the Mexican system
was the foundation for the rules and customs adopted, for in
the matter of lode claims that system is the direct antithesis
of the California system, the former recognizing vertical
planes through the exterior boundaries and the latter recognizing
the extra-lateral right. The mere fact that the Mexi

can system recognized discovery as the source of title and
development as the condition of holding it, need not cause us
to jump to the conclusion that in these respects the rules and
customs of Californians were a conscious imitation of the
Mexican system, especially when the two systems are so
radically dissimilar in other points. In a region where the
only title could be possessory, and possibly temporary, under
the law, what other arrangement in these respects than the
one adopted could have suggested itself to the pioneers?
May it not be simply another illustration of the fact that,
with the same problem and the same environment, the human
mind has in different ages often arrived at the same practical
solution. Even the idea of the story of the Jumping Frog
of Calaveras need not necessarily be deemed a conscious
imitation of its Boeotian prototype.
The California pioneers who were Americans did not have
to learn the science of organization from their foreign associates.
The instinct of organization was a part of their
heredity. Professor Macy, of Johns Hopkins University,
once wrote : "It has been said that if three Americans meet
to talk over an item of business, the first thing they do is to
organize." This trait is as characteristic as the one of periodically
saving the country by assembling in mass meeting
and passing resolutions. Californians were not the first
American early settlers upon the public domain of the United
States who were left for a time without statutory law, federal
or local. The institutional beginnings of more than one
western state, notably of Wisconsin and Iowa, furnish a most
interesting parallel, and the groundwork of their rules and
regulations, except with regard to' the extra-lateral right in
mining, are in many respects absolutely identical. The lead
miners of Dubuque who on the I7th of June, 1830, assembled
around an old cottonwool log, stranded on an island, and
appointed a committee of five miners to draw up regulations
for their government, would have been surprised to be told
in after years that the rules they framed had any other source
for their inspiration than the courage, the necessities and the
resourcefulness of intelligent frontiersmen.

"Obviously no customs or laws could be adopted without
some kind of consensus or assent on the part of the mining
community. This was at first generally merely the agreement
of the particular company or camp, which might have
its own separate and distinct rules and regulations different
from all its neighbors; but by degrees meetings of the miners
of different camps and at length of whole neighborhoods
were held, until finally it became common to form what
are known as mining districts, embracing large tracts of territory
and to adopt laws applicable to and effective throughout
the whole territory so included. * * * And there
were a great many hundreds of them. Nearly every bar,
flat and gulch had its separate rules. Their jurisdictions
were ferequently changed, some consolidating into large
districts and others dividing into smaller ones the changes
being dependent chiefly upon the character as to homogeneousness
or otherwise of the mining region embraced and
the convenience for the miners of access to a common place
of meeting."

History of the Bench and Bar of California, Historical Sketch of the Mining Law in California.

DESCRIPTION OF RULES AND REGULATIONS.
Mr. Ross Browne, in his preliminary report on the Mineral
Resources of the West, made in 1867 (p. 226), in describing
the nature of these regulations, says :
"It is impossible to obtain, within the brief time allowed
for this preliminary report, a complete collection of the mining
regulations, and they are so numerous that they would
fill a volume of a thousand pages. There are not less than
five hundred mining districts in California, two hundred in
Nevada, and one hundred each in Arizona. Idaho and Ore

gon, each with its set of written regulations. The main
objects of the regulations are to fix the boundaries of the
district, the size of the claims, the manner in which claims
shall be marked and recorded, the amount of work which
must be done to secure the title, and the circumstances
under which the claim is considered abandoned and open to
occupation by new claimants. The districts usually do not
contain more than a hundred square miles, frequently not
more than ten, and there are in places a dozen within a
radius of ten miles. In lode mining, the claims are usually
two hundred feet long on the lode; in placers the size depends
on the character of the diggings and the amount of labor
necessary to open them. In hill diggings, where the pay
dirt is reached by long tunnels, the claim is usually a hundred
feet wide, and reaches to the middle of the hill. Neglect to
work a placer claim for ten days in the season when it can be
worked is ordinarily considered as an abandonment. The
regulations in the different districts are so various, however,
that it is impossible to reduce them to a few classes comprehending
all their provisions."
The most succinct and accurate description of the rules
and regulations of the California miners, and especially of
the manner of marking the boundaries of the claims, both
placer and lode, is from the pen of Chief Justice Beatty
(Report Public Land Commission, p. 396) :
"When placer mining began in California there was no
law regulating the size of claims or the manner of holding
and working them, and local regulations by the miners
themselves became a necessity. They were adopted, not
because the subject was too complicated or difficult for
general regulation, but because they were needed at once
as the sole refuge from anarchy. The first and most important
matter to be regulated was the size of claims, and the
earliest miners' rules contained little else than a limitation
of the maximum amount of mining ground that one miner
might hold. That being determined, he was left to take
possession of his claim and work it as he pleased.

Sometimes, a decision by the Supreme Court not to take a case can be almost as significant as a decision by the Court. That is certainly the case with the Supreme Court's decision on October 4, 2010 to deny the petition for certiorari by the losing defendant in United States v. Apex Oil Co. , 579 F.3d 734 (7th Cir. 2009 ). The consequence of the Court's refusal to take the case is to reinforce a trend in the case law holding that the federal or State government's right to compel a debtor to perform an environmental cleanup may not be dischargeable under the U.S. Bankruptcy Code, even if the only way that the debtor could comply is to spend substantial amounts of money.

The Apex Oil case addressed a critical issue at the intersection between environmental law and bankruptcy law which has reverberated through the courts for the last 25 years: Is the government's right to injunction ordering a debtor to perform an environmental cleanup (and to spend money doing so) a “claim” that can be discharged in bankruptcy?

From a debtor's financial perspective, an order compelling it to spend money on environmental cleanup has the same effect as an order compelling it to pay damages on a contract or tort claim. In each scenario, there is a monetary obligation based on an event that occurred prior to the bankruptcy petition. But the significant difference is that in the case of a cleanup injunction, the debtor does not pay the money directly to the government, but rather pays a contractor to perform the cleanup activities that the government wants done.

The Bankruptcy Code provides for the discharge of “debts,” which are defined as a “liability on a claim.” 11 U.S.C. § 101(12). A “claim” in turn is defined to include both a “right to payment” and a “right to an equitable remedy for breach of performance if such breach gives rise to a right to payment.” 11 U.S.C. § 101(5) . For 25 years, the courts have struggled with the question whether a government demand that a debtor spend its money to perform an environmental cleanup falls within the second prong of that definition.

The early cases appeared to support the concept that an obligation to spend money for environmental cleanup is a “claim” and may be discharged. The first significant decision was by the Supreme Court itself in Ohio v. Kovacs , 469 U.S. 274 (1985), a case in which the State of Ohio had succeeded in having a lower court appoint a receiver to manage the cleanup of a toxic landfill. The State also sought to compel Kovacs, the former owner-operator of the landfill, to provide funds for the receiver's cleanup. The Supreme Court itself held that the State's demand was a “claim” in Kovacs' chapter 7 case and was barred by his discharge. A few years later, the Sixth Circuit in United States v. Whizco, Inc. , 841 F.2d 147 (6th Cir. 1988), held that the federal government could not compel a former operator of a strip mine to spend money to restore the mine site because that too was a “claim” discharged in the mine operator's bankruptcy case.

After Kovacs and Whizco , however, the decisions began to trend in the opposite direction. In In re Chateaugay Corp. , 944 F.2d 997 (2d Cir. 1991), the Second Circuit ruled that the presence of hazardous substances in the soil and groundwater under a debtor's property represented continuing pollution, and therefore the debtor could be compelled to spend money to clean up the property and that obligation was not subject to discharge in the debtor's bankruptcy case. But Chateaugay only addressed cleanup obligations with respect to property that the debtor continues to own and operate, recognizing that, under 28 U.S.C. § 959(b), a debtor in possession had a statutory obligation to operate its property in accordance with applicable law. Then, the Third Circuit in In re Torwico Electronics, Inc. , 8 F.3d 146 (3d Cir. 1993), held that a debtor's obligation to fund a cleanup was not a “claim” and was not dischargeable, even though the debtor did not own the property and its lease had expired four years earlier. The Third Circuit held that the debtor had a continuing obligation to clean up waste that it had left behind.

The Seventh Circuit's 2009 decision in Apex Oil continued the trend, finding that a reorganized debtor's obligation to pay for an environmental cleanup of property that it did not own was not a claim and was not dischargeable, although the only way the debtor could comply was to pay $150 million to a contractor to perform the work. Judge Posner, writing for the Seventh Circuit, held that because the government had brought its claim under section 7003(a) of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6973(a) , a statute that allows the government to sue for an injunction to compel a cleanup, but does not allow the government to sue for money, the government's right to an injunction was not a “claim” under section 101(5) of the Bankruptcy Code. In the Seventh Circuit's view, the right to a RCRA injunction “was not a right to an equitable remedy,” the breach of which gave “rise to a right to payment,” but RCRA did not provide for a monetary recovery, and therefore was not a “claim” under section 101(5). 579 F.3d at 736. Further, Judge Posner concluded that the fact that it would cost the defendant money to perform the work required under the injunction did not make it a “right to payment.” Id. at 737.

An interesting facet of Apex is that the government brought the case under section 7003(a) of RCRA, rather than under the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”). Section 7003(a) of RCRA was adopted in 1976, four years before the adoption of CERCLA in 1980. Generally, the U.S. Environmental Protection Agency (“EPA”) prefers to bring cases under CERCLA, rather than section 7003(a) of RCRA, in part because CERCLA provides for both injunctive relief and the recovery of cleanup costs spent by the government. 42 U.S.C. §§ 9606(a), 9607(a). But although the record in the Apex case indicated that EPA first began to address the contaminated site at issue under CERCLA, the government made a deliberate decision to bring its case against Apex only under RCRA. The reason for this decision is apparent: If the government had sued under CERCLA, Apex could have argued that CERCLA creates an alternate right to monetary and therefore the government's right is exactly the sort of equitable right which can give rise to a right to payment. By suing under RCRA, the government hoped to forestall that argument, and its strategy worked.

In its petition for certiorari, Apex made exactly this point: The government had a “right to payment” under CERCLA, but was trying to avoid that characterization by bringing its claim under a RCRA provision it would otherwise not have used. Apex also argued that the Seventh Circuit was inconsistent with both the Supreme Court's decision in Kovacs and the Sixth Circuit's decision in Whizco . But these arguments did not persuade the Supreme Court to grant certiorari.

The consequence of the Supreme Court's decision not to take the Apex case is to reinforce the trend of cases holding that cleanup injunctions are not dischargeable in bankruptcy, even if the only means of compliance is for the debtor to spend money. While the question of whether an injunction under CERCLA is a dischargeable claim has not yet been decided, it may not matter because the federal and state governments will be careful in future cases to demand injunctions against debtors and reorganized debtors under RCRA and other statutory authorities that do not permit the recovery of money, rather than under CERCLA.

For a corporate debtor that is liquidating, this decision will have little consequence: Once the debtor is without assets, it is incapable of complying with a cleanup injunction. But for a corporate debtor that is reorganizing, the Supreme Court's refusal to consider the Apex case may be highly significant. It means that the debtor's discharge is not likely to protect it from injunctions to perform environmental cleanups in the future.

This leaves the reorganizing debtor with two alternative strategies. First, in planning for reorganization, it can make sure that the newly emerging entity will have sufficient financial resources to meet its cleanup obligations. Second, it can attempt to settle its environment cleanup obligations in the context of its bankruptcy case. Often, the federal government (and sometimes the states) are more flexible in settling environmental obligations with reorganizing debtors than they would be with ordinary commercial entities, and terms may be negotiated which protect the reorganized debtors from environmental liabilities that are not subject to the discharge. It is frequently in the debtor's interest to reach an amicable resolution of these liabilities with the government in the course of its reorganization process, rather than emerging from the chapter 11 process to face unresolved government demands, as Apex did.

United States Hazardous Waste Engineering Environmental Protection Research Laboratory Agency Cincinnati OH 45268 Research and Development EPN600/S2-88l019 Mar. 1988

An extremely large data base has been generated during the course of the present study for both the bench-scale and the large-scale test work. The bench-scale study results support the following conclusions:

The emphasis of the project was directed
toward investigating the application of
phosphate precipitation as a means of
selectively separating iron and chromium
from divalent cation species.
These objectives have been
accomplished. Flowsheets and
alternatives are discussed in the body of
the main report. The developed
flowsheets have been verified to be
feasible by laboratory test work and
selective metal value separations have
been shown to be possible, e.g., iron and
chromium can be separated from divalent
metals such as zinc, nickel, and
cadmium. Large-scale test work has
also verified that effective separations are
feasible and practical, and an economic
evaluation has been performed showing
that an excellent return on investment is
possible.

An efficient solution for the single-step synthesis of 4CaO * Al2O3
* Fe2O3
powders
Robert Ianos¸a)
“Politehnica” University of Timis¸oara, Faculty of Industrial Chemistry and Environmental
Engineering, Timis¸oara 300006, Romania
(Received 29 April 2008; accepted 8 October 2008)
Single-phase nanocrystalline 4CaOAl2O3Fe2O3 powders were prepared directly from
the combustion reaction using a new cost-effective, time-saving, and environmentally
friendly version of solution combustion synthesis. Instead of a single fuel, a fuel mixture
of urea and b-alanine was used. It was shown by x-ray diffraction, energy-dispersive
x-ray analysis, thermogravimetric analysis, and optical microscopy that this new version
of the solution combustion synthesis allows the maximization of the exothermic effect
associated with the combustion reaction. On the other hand, it was shown that the
traditional version of combustion synthesis involving the use of a single fuel, such as urea
or b-alanine, does not ensure the formation of Ca4Al2Fe2O10 unless subsequent thermal
treatments are applied. It was suggested that the occurrence of combustion reactions
cannot be regarded only in terms of adiabatic temperature, as the kinetic aspects overrule
the thermodynamic ones.

The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” (James Madison, Federalist 45 )

PROCLAMATION TERMINATING THE NATIONAL EMERGENCY, 2010-0021996 Shasta County Court

Sec. 123.27 Requirements for enforcement authority.
(a) Any State agency administering a program shall have available the following remedies for violations of State program requirements: (1) To restrain immediately and effectively any person by order or by suit in State court from engaging in any unauthorized activity which is endangering or causing damage to public health or the environment; Note: This paragraph (a)(1) requires that States have a mechanism (e.g., an administrative cease and desist order or the ability to seek a temporary restraining order) to stop any unauthorized activity endangering public health or the environment. (2) To sue in courts of competent jurisdiction to enjoin any threatened or continuing violation of any program requirement, including permit conditions, without the necessity of a prior revocation of the permit; (3) To assess or sue to recover in court civil penalties and to seek criminal remedies, including fines, as follows: (i) Civil penalties shall be recoverable for the violation of any NPDES permit condition; any NPDES filing requirement; any duty to allow or carry out inspection, entry or monitoring activities; or, any regulation or orders issued by the State Director. These penalties shall be assessable in at least the amount of $5,000 a day for each violation. (ii) Criminal fines shall be recoverable against any person who willfully or negligently violates any applicable standards or limitations; any NPDES permit condition; or any NPDES filing requirement. These fines shall be assessable in at least the amount of $10,000 a day for each violation. Note: States which provide the criminal remedies based on ``criminal negligence,'' ``gross negligence'' or strict liability satisfy the requirement of paragraph (a)(3)(ii) of this section. (iii) Criminal fines shall be recoverable against any person who knowingly makes any false statement, representation or certification in any NPDES form, in any notice or report required by an NPDES permit, or who knowingly renders inaccurate any monitoring device or method required to be maintained by the Director. These fines shall be recoverable in at least the amount of $5,000 for each instance of violation. Note: In many States the State Director will be represented in State courts by the State Attorney General or other appropriate legal officer. Although the State Director need not appear in court actions he or she should have power to request that any of the above actions be brought. (b)(1) The maximum civil penalty or criminal fine (as provided in paragraph (a)(3) of this section) shall be assessable for each instance of violation and, if the violation is continuous, shall be assessable up to the maximum amount for each day of violation. (2) The burden of proof and degree of knowledge or intent required under State law for establishing violations under paragraph (a)(3) of this section, shall be no greater than the burden of proof or degree of knowledge or intent EPA must provide when it brings an action under the appropriate Act; Note: For example, this requirement is not met if State law includes mental state as an element of proof for civil violations. (c) A civil penalty assessed, sought, or agreed upon by the State Director under paragraph (a)(3) of this section shall be appropriate to the violation. Note: To the extent that State judgments or settlements provide penalties in amounts which EPA believes to be substantially inadequate in comparison to the amounts which EPA would require under similar facts, EPA, when authorized by the applicable statute, may commence separate actions for penalties. Procedures for assessment by the State of the cost of investigations, inspections, or monitoring surveys which lead to the establishment of violations; In addition to the requirements of this paragraph, the State may have other enforcement remedies. The following enforcement options, while not mandatory, are highly recommended: Procedures which enable the State to assess or to sue any persons responsible for unauthorized activities for any expenses incurred by the State in removing, correcting, or terminating any adverse effects upon human health and the environment resulting from the unauthorized activity, whether or not accidental; Procedures which enable the State to sue for compensation for any loss or destruction of wildlife, fish or aquatic life, or their habitat, and for any other damages caused by unauthorized activity, either to the State or to any residents of the State who are directly [[Page 249]] aggrieved by the unauthorized activity, or both; and Procedures for the administrative assessment of penalties by the Director. (d) Any State administering a program shall provide for public participation in the State enforcement process by providing either: (1) Authority which allows intervention as of right in any civil or administrative action to obtain remedies specified in paragraphs (a)(1), (2) or (3) of this section by any citizen having an interest which is or may be adversely affected; or (2) Assurance that the State agency or enforcement authority will: (i) Investigate and provide written responses to all citizen complaints submitted pursuant to the procedures specified in Sec. 123.26(b)(4); (ii) Not oppose intervention by any citizen when permissive intervention may be authorized by statute, rule, or regulation; and (iii) Publish notice of and provide at least 30 days for public comment on any proposed settlement of a State enforcement action. (e) Indian Tribes that cannot satisfy the criminal enforcement authority requirements of this section may still receive program approval if they meet the requirement for enforcement authority established under Sec. 123.34. (Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42 U.S.C. 7401 et seq.), Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.)) [48 FR 14178, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983; 50 FR 6941, Feb. 19, 1985; 54 FR 258, Jan. 4, 1989; 58 FR 67981, Dec. 22, 1993]

WASHINGTON – Today at the National Press Club, administration officials highlighted recent grants released by the Partnership for Sustainable Communities to support more livable and sustainable communities across the country. The Partnership, which consists of the U.S. Environmental Protection Agency (EPA), U.S. Department of Transportation (DOT), and U.S. Department of Housing and Urban Development (HUD), builds economic competitiveness by connecting housing with good jobs, transportation, and more. Last week, agencies began releasing local grants to support sustainable living nationwide. The combined sum of the agencies' grants is $409.5 million.

“We're working to change the way government works, and that means investing tax dollars wisely and well,” President Obama said in a statement. “We want to make sure that when we're building infrastructure, we're considering how housing, transportation, and the environment all impact each other. These grants are designed to get the biggest bang for our tax dollar buck.”

Over the past year, EPA, HUD, and DOT have worked together to promote better outcomes for communities and more effective federal investments through better targeted federal resources, removal of existing federal regulatory and policy barriers to smart and sustainable development, as well as aligned agency priorities that will ensure lasting collaboration.

“These grants will help boost economic development with the goal that all Americans can afford to live in communities with access to employment, schools and transportation options,” said HUD Secretary Shaun Donovan. “Communities across the country offered bold, unique proposals to plan and build sustainably based on their own local resources, landscape, culture and ingenuity. With this partnership we can lay the foundation for sustainable economic prosperity for generations to come by helping communities that share problems start sharing solutions.”

Coordinating federal investments in infrastructure, facilities, and services meets multiple economic, environmental, and community objectives with each dollar spent. The Partnership is helping communities across the country to create more housing choices, make transportation more efficient and reliable, reinforce existing investments, and support vibrant and healthy neighborhoods that attract businesses.

“These investments represent an unprecedented new way of working together. And they set a powerful example for how we can reward true excellence, effective partnerships, and the good stewardship of taxpayer dollars,” said Transportation Secretary Ray LaHood. “Americans can rebuild their communities - not just in spite of enormous economic challenges, but as the means for overcoming them.”

At a time when every dollar the federal government invests in jumpstarting the economy is critical, the President's plan ensures that all these agencies are coordinating efforts and targeting resources with precision. This collaboration gets better results for communities and uses taxpayer money more efficiently. Reflecting this new collaboration, these grants were judged by a multidisciplinary review team, drawn from eight federal agencies and from partners in philanthropy.

"President Obama has made clear that sustainable communities with affordable housing and access to a broad range of transportation options are vital to rebuilding the foundation for prosperity in this country,” EPA Administrator Lisa P. Jackson said. “This Partnership is bringing our efforts together, allowing our resources to have more impact, and ensuring that we are collaborating on the housing, transportation and environmental needs that are essential to the success of every community. Our work has already helped to create healthier communities and open up better opportunities to attract new jobs and investments.”

October 13, 2010

The September 2010 Strategy reflects extensive public comment on the Agency's August 2009 Strategy and EPA response to the input. It also reflects refined EPA policy, modified activities within the key actions, and other developments as green remediation matures. View or download at http://www.epa.gov/superfund/greenremediation/ .

Residential property owners that purchase contaminated property after January 2002, can take advantage of the statutory BFPP protection. The Brownfields Amendments addressed residential property owners by clarifying the type of pre-purchase investigation (i.e., all appropriate inquiry) that a residential property owner must conduct to obtain BFPP status. Specifically, an inspection and title search that reveal no basis for further investigation will satisfy all appropriate inquiry for a residential purchaser. CERCLA § 101(40)(B)(iii).

After the enactment of the Brownfields Amendments, EPA issued a policy on May 31, 2002, Bona Fide Prospective Purchasers and the New Amendments to CERCLA, which discusses the interplay of the legislatively created BFPP and EPA’s use of PPAs. In that policy, EPA stated that in most circumstances, PPAs will no longer be needed for a party to enjoy liability relief under CERCLA as a present owner. There will continue to be, however, limited circumstances under which EPA will consider entering into a PPA, such as:
• Significant environmental benefits will be derived from the project in terms of cleanup;
• The facility is currently involved in CERCLA litigation such that there is a very real possibility that a party who buys the facility would be sued by a third party;

Unique, site-specific circumstances when a significant public interest will be served.
Despite the liability relief assurances to BFPPs which the above-referenced guidance documents provide, many prospective purchasers of contaminated property wanted further protection from EPA for cleanup work performed by them under EPA supervision. As a result of this need and to further encourage reuse and redevelopment on contaminated sites, EPA, jointly with the Department of Justice (DOJ), issued a model administrative order titled Issuance of CERCLA Model Agreement and Order on Consent for Removal Action by a Bona Fide Prospective Purchaser, for use as an agreement with a BFPP who intends to perform removal work at its property. The purpose of the model is to promote land reuse and revitalization by addressing liability concerns associated with acquisition of contaminated property. In particular, the removal work to be performed under the model must be of greater scope and magnitude than the “reasonable steps to prevent releases” which must be performed by BFPPs if they are to maintain their protected status under the statute.
The model provides a covenant not to sue for “existing contamination” and requires the person performing the removal work to reimburse EPA’s oversight costs. Contribution protection is also provided. The model is for use at sites of federal interest where the work is more significant and complex than other contaminated sites.

From the public perspective, the incentives to private investors catalyze projects that provide societal benefits, ranging from job creation to public health improvements. The more state and local governments and communities are aware of the benefits of and opportunities for vacant property redevelopment, the more they can seek ways to encourage investors to consider such projects.
CONCLUSION
There are significant economic, fiscal, environmental, and public health benefits of redeveloping vacant properties instead of developing greenfields. With the recent passage of the historic ARRA, state and local officials face numerous decisions about how, when, and where to invest funds to stimulate the economy. Investing in the redevelopment of vacant properties, including petroleum brownfields, and using the tools described above, will maximize the public investment value of those dollars.
One of the most important steps to reducing the barriers to such redevelopment is for state, local, and tribal decision-makers to engage in immediate outreach efforts to disseminate information about redevelopment opportunities and processes, as well as the significant financial and technical assistance mechanisms available to help with such efforts. One of the most promising strategies is corridor redevelopment – encouraging projects that simultaneously redevelop multiple vacant properties, including petroleum brownfields. This approach represents a tremendous opportunity for investors, with two significant advantages: the properties themselves are inexpensive, for their size often renders them unmarketable individually, while the inclusion of petroleum brownfields and the area-wide redevelopment approach makes the project eligible for myriad additional federal and state funding programs. In addition to outreach efforts and encouraging corridor redevelopment, state, local, and tribal decision-makers can also facilitate redevelopment by making policy changes that mitigate some of the historical obstacles to petroleum brownfield and vacant property redevelopment.

PHOENIX (AP) - Mine operator Freeport-McMoRan says it plans to restart mining and milling operations at its Chino copper mine in New Mexico.

The company shut the mine down in 2008 because of global economic conditions.

The Phoenix-based company says the ramp up of mining and milling activities will significantly increase production at Chino, which is currently producing small amounts of copper from existing leach stockpiles. Planned mining and milling rates are expected to be achieved by the end of 2013.

The cost of equipment and mill refurbishment is estimated at about $150 million.

Freeport-McMoRan says restarting operations would increase copper production by 150 million to 200 million pounds per year.

Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

The latest report from the Special Inspector General for TARP questions the level of transparency the Treasury Department has offered in the bailout program and says the department may have used misleading figures when it released details about Amercian International Group Inc.'s repayment plan.

The estimate of a $5 billion loss to TARP on the AIG investment, contained in Treasury's recent two-year retrospective on the program, is a "dramatic shift" from an estimate just six months ago that taxpayers would take a $45 million hit on the deal, wrote Neil Barofsky, the special inspector general.

Barofsky's report said that although taxpayers might get a better deal on AIG then originally anticipated, Treasury's new projections rely on the assumption that AIG's recapitalization plan will go exactly as planned. In actuality, the projections "are subject to a degree of uncertainty."

The new figures apparently abandoned previous methodologies that Treasury used on its AIG calculations, according to Barofsky, and instead based the estimates on recent closing prices of AIG's common stock.

The watchdog suggested that Treasury's change in methodology, as opposed to an actual improvement in the company's prospects, accounted for the large shift on the cost of the deal.

"Without correction, this may render Treasury vulnerable to the charge that it is changing its methodology without adequate disclosure in order to create a more favorable impression of AIG's and TARP's projected losses," Barofsky wrote in a letter to Treasury Secretary Timothy Geithner dated Oct. 13.

The Treasury figure "failed to meet transparency standards" by not disclosing the exact nature of the new methodology, according to the report. Treasury has denied making any change in its methodology.

Barofsky's report also emphasized the broader claim that a lack of transparency from Treasury, mismanagement of some TARP programs, and flawed decision-making processes have fostered mistrust among the public.

The report says that while Wall Street benefited from the Troubled Asset Relief Program, "Main Street has largely suffered alone, however, in those areas in which TARP has fallen short of its other goals."

"Indeed, even now, overall lending continues to contract, despite the hundreds of billions of TARP dollars provided to banks with the express purpose to increase lending."

Barofsky noted that while TARP may have helped to mitigate potential job losses, the 9.6 unemployment rate is higher than it was at the program's inception.

Treasury's promotion of its mortgage modification program "without meaningful goals or metrics," and the department's ongoing assertions that all banks receiving taxpayer investments through TARP's Capital Purchase Program were healthy (even when it knew "full well that some are not") has continued to erode the public's trust, the report said.

The Government Accountability Office recently called 12 percent of the CPP banks "marginal applicants."

If Treasury wants to improve the perception of TARP, the report said, "it must elevate transparency above other short term concerns in its communication with the American people."

Although the report praised the rapidly declining estimates of the cost of TARP -- $66 billion was the Congressional Budget Office's latest prediction -- there are greater concentrations in the financial sector, moral hazard has increased, and "the biggest banks are bigger than ever."

CAPITAL PURCHASE PROGRAM

The report also revealed for the first time that Treasury has appointed observers to the boards of 14 financial institutions that got public aid through TARP but have fallen behind on their dividend payments they owe taxpayers.

According to Barofsky's report, 137 institutions that got aid through the Capital Purchase Program have missed dividend payments, including eight that missed at least six payments and 16 that missed five.

Treasury can appoint members to a TARP recipient's board once it has missed six payments. Observers can be appointed once five are missed.

As of Sept. 30, Treasury had not appointed any directors to the boards of banks that have been skipping payments, the report said.

HOME AFFORDABLE MODIFICATION PROGRAM

Barofsky's organization also took the opportunity to elaborate on its continued criticism of the Home Affordable Modification Program, saying that initiative has fallen "woefully short" of preserving homeownership. TARP has funded just 207,000 of the 467,000 permanent mortgage modifications that have been granted under the HAMP program. That's compared to 5.5 million foreclosure filings made since January 2009.

Just $483.3 million in TARP money has been spent on HAMP, even though Treasury originally committed to using $50 billion in TARP funds on that effort.

Now, Treasury finds itself defending a program that is clearly failing to meet the goal of promoting homeownership, Barofsky wrote. Over the last quarter, HAMP produced a net increase of fewer than 26,000 permanent modifications per month. Meanwhile, new trial modifications have slowed to fewer than 29,000 per month, "signaling that the anemic pace of permanent modifications may only get even worse."

The reported chided Treasury for consistently touting the number of trial modifications that the program has handed out as an indication of success. Either Treasury has a warped public relations strategy or is out of touch, the report said.

"Treasury's decision to declare such uniform success for so many failures disregards the harm and suffering that often accompany failed trial modifications," Barofsky's report said, adding that families with HAMP trials often spend extra money in a futile attempt to get save their homes.

In the process, they often suffer damaged credit scores, or wind up with increased outstanding principal on the loans.

The report also re-printed many of the complaints that Barofsky's office has received from borrowers whose mortgage servicers allegedly violated HAMP guidelines by losing paperwork and keeping homeowners in trial modifications limbo.

Despite the complaints, "no financial penalities have been imposed by Treasury on any servicers participating in the program, although according to Treasury, it has 'imposed non-financial remedies which have resulted in servicers re-evalualting homeowners' HAMP eligibility.'"

PAY CZAR

The report also revealed that SIGTARP is continuing to investigate the constitutionality of the position of Special Master of TARP Executive Compensation, also known as the "pay czar." The job was formerly held by Kenneth Feinberg, who was charged with setting the the compensation of the top 25 executives at TARP recipients who got "exceptional" aid.

The position is appointed by the Treasury Secretary and does not require Senate approval. Barofsky initially contacted the Treasury Department with questions about the constitutionality of the position a year ago.

Barofsky requested a legal opinion on the matter from the Justice Department in an Aug. 20 letter. Essentially, the matter boils down to whether the pay czar is subordinate to the Treasury Secretary. If he or she is not, then there may be constitutional issues.

NEW AUDITS

The report also revealed three new audits it is conducting on TARP issues.

Hardest Hit Fund: Rep. Darrell Issa (R -- Calif.) requested the audit to examine the extent to which Treasury applied consistent and transparent criteria in selecting states that would receive money through the program, which provides funding to state housing finance agencies that develop their own home-preservation programs. So far, the program has allocated $7.6 billion to 18 states and Washington, D.C.

Deferred tax assets: Rep. Dennis Kucinich (D -- Ohio) sought the audit to examine whether Treasury was aware of the impact of a new IRS rule that saved Citigroup tens of billions of dollars.

AIG severance payments: Sen. Chuck Grassley (R -- Iowa) sought the review of executive compensation regulations issued by Treasury relating to severance payments of former AIG executives. The report is also "examining the circumstances of an alleged conflict of interest within the Office of the Special Master" but does not provide elaboration.

Barofsky's office has eight previously-announced audits that remain ongoing as well as 130 criminal and civil investigations.

EPA's C2P2 Website presented an incomplete picture regarding actual damage and potential risks that can result from large-scale placement of CCRs. In its May 2010 proposed rule, EPA showed that environmental risks and damage can be associated with the large-scale placement of unencapsulated CCRs. According to EPA's proposed rule, unencapsulated use of CCRs may result in environmental contamination, such as leaching of heavy metals into drinking water sources. The proposed rule identified seven cases involving large-scale placement, under the guise of beneficial use, of unencapsulated CCRs, in which damage to human health or the environment had been demonstrated. EPA states in its proposed rule that it does not consider large-scale placement of CCRs as representing beneficial use. However, EPA's C2P2 Website, which contained general risk information, did not disclose this EPA decision and did not make the seven damage cases readily accessible.

The C2P2 Website also contained material that gave the appearance that EPA endorses commercial products. Such an endorsement is prohibited by EPA ethics policies and communications guidelines. We identified 9 of 23 case studies on the Website that reference commercial products made with CCRs or patented business technologies. All 23 of the studies were marked with EPA's official logo but none had the required disclaimer stating that EPA does not endorse the commercial products.

Although EPA has suspended active participation in C2P2 during the rulemaking process, the C2P2 Website remained available for public searches, information, and education. The C2P2 Website contained incomplete risk information on the beneficial use of CCRs. The C2P2 Website also contained apparent or implied EPA endorsements that are prohibited by EPA policies.

How Sites are Deleted from the NPL

EPA must delete a final NPL site if no response was required to protect human health or the environment.

THE STATE OF CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCE CONTROL (DTSC) MUST RETRACT AND APOLOGIZE FOR THIS PROPAGANDA

BENEFICIAL, NUTRITIOUS AND ESSENTIAL TO MOST PLANTS AND ANIMALS, ESPECIALLY HUMANS

THE ONLY AQUATIC ORGANISM THE GOVERNMENT CLAIMS TO REPRESENT FOR DAMAGES AGAINST MR. T.W. ARMAN AND IRON MOUNTAIN MINES, INC. UNDER THE ENDANGERED SPECIES ACT IS WINTER RUN CHINOOK SALMON, THE UNITED STATES BAIRD HATCHERIES' HYBRID SPORT FISH OF THE EXTINCT MCCLEOD RIVER, WHICH WAS EXTERMINATED BY CONSTITUTIONAL REFERENDUM OF THE PEOPLE OF CALIFORNIA IN 1934 AND EXECUTED WITH THE CONSTRUCTION OF THE SHASTA DAM BY THE UNITED STATES IN 1943.

ALL SPECIES OF FISH ARE AND HAVE ALWAYS BEEN HEALTHY AND GOOD TO EAT IN THE CABECERA DEL RIO DE BUENAVENTURA
(Maps by Albert Finley (1826) & Albert Gallatin (1836) labels the current Sacramento River as the Buenaventura)
TRUST WATER HABITATS OF NOAA BELOW KESWICK DAM.

TOXICITY THRESHOLD? HOW ABOUT WE ALL DESPERATELY NEED THESE ESSENTIAL NUTRIENTS.

THE ONLY FISH KILLS WE COULD VERIFY WERE CLEARLY CAUSED BY THE CONSTRUCTION OF THE UNITED STATES CALIFORNIA DAMS.

SURE DO GET SOME BARREN HILLS AND MUDDY RUN-OFF AFTER YOU LET THE FOREST BURN UP.

THERE ARE NO MERCURY OR METHYL-MERCURY HAZARDS AT IRON MOUNTAIN MINE, AND THE DISSOLVED METALS ARE IRON, COPPER, ZINC, SILVER, AND GOLD. SEEMS MORE LIKE THE GROUND WATER IS A HAZARD TO US GETTING THE METALS OUT.

POTENTIAL THREAT? NOW I GET IT. YOU WOULDN'T KNOW AN ACTUAL THREAT UNTIL IT BIT YOU.

MAJOR IMPACTS? MORE LIKE MAJOR IMPROVEMENTS; SINCE WHEN IS THAT A CRIME?

IF IT WAS IDENTIFIED SO EARLY IN CALIFORNIA, WHY IS THE FEDERAL EPA HERE NOW?

OMAHA, Neb. (AP) - The Asarco mining company wants to join Union Pacific's legal fight over Environmental Protection Agency records about lead contamination in Omaha, because Asarco hopes to recover millions from companies involved in the contamination.

The information Union Pacific and Asarco want relates to 5,600 lead-contaminated properties in Omaha. The EPA and Union Pacific have been trying for years to settle who should pay several hundred million dollars to clean up the lead.

The Omaha-based railroad sued in June after obtaining e-mails in which EPA officials discussed deleting records.

Asarco paid $200 million as part of a settlement with the EPA because it ran a lead smelter in Omaha for more than 50 years before the smelter closed in 1997. Asarco did not admit fault in the settlement.

Attorney Greg Evans said the EPA documents might help Asarco recover compensation from companies that contributed to the contamination.

"We need to make sure we have a clear understanding of the cause of the contamination," Evans said.

EPA officials did not immediately respond to messages Tuesday.

Union Pacific is also trying to learn what caused the lead contamination because the railroad argues that lead house paint is the real problem. The EPA blames industrial sources of lead, especially Asarco's smelter, for the contamination, and Asarco's smelter operated on land leased from UP for several years before Asarco bought the land in 1946.

Railroad officials hope the records they are requesting will prove that Union Pacific isn't responsible for the contamination.

Union Pacific spokesman Tom Lange said the railroad supports Asarco's petition to become a plaintiff in the lawsuit.

But a federal judge will determine whether Tucson, Ariz.-based Asarco is allowed to join the case.

Before Asarco's motion was filed Monday, mediation talks between Union Pacific and the EPA were scheduled to begin Nov. 12. A computer expert has also been assigned to review the EPA's data and its plan to protect information.

Union Pacific said in its lawsuit that the document destruction may date back to at least 2004. The company quoted several e-mails in which an EPA supervisor encourages employees to delete messages so the railroad won't be able to obtain the information under the Freedom of Information Act.

Union Pacific said the EPA responded slowly to the records requests it submitted in 2002, 2003, 2004 and 2009. The railroad said it found the e-mails about destroying documents buried in more than 1.1 million pages of records the EPA did provide, but is not sure whether the agency provided everything requested.

Asarco has asked for some of the same information Union Pacific is seeking, and Evans said Asarco filed its own lawsuit in 2008 over the EPA's response to its requests.

Much of eastern Omaha has been designated a superfund site by the EPA because of the extent of lead contamination, which can endanger children's health, causing decreased intelligence, slow growth and behavior problems. The EPA has been working to clean up the site for several years.

The EPA has already removed and replaced the soil at nearly 6,000 properties in Omaha. The total cost of the EPA cleanup is likely to exceed $400 million, according to agency estimates.

Veteran Service Organizations are not providing critical health information to their memberships on military installations that are EPA Superfund sites.

(WASHINGTON, DC) – Veteran Service Organizations (VSOs) have not notified veterans of their possible exposure to environmental hazards at 130 military installations on the EPA National Priority List (Superfund sites).

There's a critical need for the VSOs to exercise leadership by identifying the 130 military bases on the NPL, including the EPA internet link to Contaminants of Concern for each base.

There is no legal requirement or interest by the Defense Department or any government agency to notify veterans that they may have been exposed to toxic chemicals, radiation or other environmental hazards.

It's unlikely that the government will step into this role without specific legislation. Under intense pressure from Congress, the Marine Corps at Camp Lejeune established a website registry for veterans who may have been affected by TCE contaminated drinking water at the base.

A number of Congressional hearings were held, bills introduced into Congress to provide medical care to veterans and their dependents, but as of this date, the Marine Corps has not accepted responsibility for illnesses and deaths linked to the contaminated well water.

With 130 military bases on the EPA National Priority List (EPA Superfund), veterans are at risk of exposure to environmental hazards.

The mission of VSOs is to serve veterans and support their needs. Nothing can be more important than your health. There's no magic pill for exposure to an environmental hazard. Medical care providers need to know when a patient has been exposed to particular environmental hazards to provide appropriate medical care. Failure to provide this critical information is inexcusable.

Not everyone who was stationed on an EPA Superfund base was exposed to an environmental hazard, but an indeterminate number were and the health effects are serious.

Emails to the national headquarters of the American Legion, VFW, the Marine Corps League and other VSOs asking them to alert their membership of possible exposure to toxic chemicals were left unanswered.

This is not rocket science. The information on environmental hazards is resident on the EPA Superfund database. The link to the websites is contained in this article. This is literally a ‘no brainer.' Any VSO with a website only has to cut and paste the list of military bases.

Courtesy: Salem-News.com

MCAS El Toro Example . Marine Corps Air Station El Toro, California, has been an EPA Superfund site since 1990. In 1985, the Orange County Water District found trichloroethylene (TCE) and tetrachloroethylene (PCE) in shallow irrigation wells down gradient of the base.

Before knowledge of the adverse health effects on humans from exposure to these TCE and PCE were known, they were commonly used as degreasers for aircraft and vehicles.

In 1990, MCAS El Toro was placed on EPA's National Priorities List (NPL) primarily because of a plume of toxic waste of TCE and PCE spreading off base several miles which threatened the local water supply. In 1993, MCAS El Toro was placed on the DoD BRAC list and officially closed in 1999.

At El Toro, the Navy identified 25 contaminated areas on base, including landfills containing both hazardous and solid waste; buried drums of explosives and low-level radioactive waste; and areas where PCBs, battery acids, leaded fuels, and other hazardous substances were dumped or spilled. The Navy spent millions of dollars in cleaning up the former base.

At a September 2010 Irvine City Council meeting, the Navy estimated that it would take 40 years to complete the environmental clean-up at El Toro.

Assuming a Marine veteran “connects the dots of military services to a current medical condition,” their only remedy is to file a claim with the Veterans Administration, assuming they are aware of what happened to them and unless they lived in Orange County, California that's unlikely.

EPA's Contaminants of Concern

For military bases that are EPA Superfunds, EPA defines environmental hazards as Contaminants of Concern (COC's).

According to EPA, “COC's are the chemical substances found at the site that the EPA has determined pose an unacceptable risk to human health or the environment. These are the substances that are addressed by cleanup actions at the site.”

“ Identifying COC's is a process where the EPA identifies people and ecological resources that could be exposed to contamination found at the site, determines the amount and type of contaminants present, and identifies the possible negative human health or ecological effects that could result from contact with the contaminants.”

A link to the list of COC's is shown on the first page of each EPA Superfund website under the caption, “ view contaminants of concern at this site.” The health effects from exposure to a particular COC at MCAS El Toro can be obtained by clinking on the ATSDR Profile as shown below.

The federal business energy investment tax credit available under 26 USC § 48 was expanded significantly by the Energy Improvement and Extension Act of 2008 (H.R. 1424), enacted in October 2008. This law extended the duration -- by eight years -- of the existing credits for solar energy, fuel cells and microturbines; increased the credit amount for fuel cells; established new credits for small wind-energy systems, geothermal heat pumps, and combined heat and power (CHP) systems; allowed utilities to use the credits; and allowed taxpayers to take the credit against the alternative minimum tax (AMT), subject to certain limitations. The credit was further expanded by The American Recovery and Reinvestment Act of 2009 , enacted in February 2009.

In general, credits are available for eligible systems placed in service on or before December 31, 2016:

Solar. The credit is equal to 30% of expenditures, with no maximum credit. Eligible solar energy property includes equipment that uses solar energy to generate electricity, to heat or cool (or provide hot water for use in) a structure, or to provide solar process heat. Hybrid solar lighting systems, which use solar energy to illuminate the inside of a structure using fiber-optic distributed sunlight, are eligible. Passive solar systems and solar pool-heating systems are not eligible. (The Solar Energy Industries Association has published a three-page document that provides answers to frequently asked questions regarding the federal tax credits for solar energy.)

Fuel Cells. The credit is equal to 30% of expenditures, with no maximum credit. However, the credit for fuel cells is capped at $1,500 per 0.5 kilowatt (kW) of capacity. Eligible property includes fuel cells with a minimum capacity of 0.5 kW that have an electricity-only generation efficiency of 30% or higher. (Note that the credit for property placed in service before October 4, 2008, is capped at $500 per 0.5 kW.)

Small Wind Turbines. * The credit is equal to 30% of expenditures, with no maximum credit for small wind turbines placed in service after December 31, 2008. Eligible small wind property includes wind turbines up to 100 kW in capacity. (In general, the maximum credit is $4,000 for eligible property placed in service after October 3, 2008, and before January 1, 2009. The American Recovery and Reinvestment Act of 2009 removed the $4,000 maximum credit limit for small wind turbines.)

Geothermal Systems. * The credit is equal to 10% of expenditures, with no maximum credit limit stated. Eligible geothermal energy property includes geothermal heat pumps and equipment used to produce, distribute or use energy derived from a geothermal deposit. For electricity produced by geothermal power, equipment qualifies only up to, but not including, the electric transmission stage. For geothermal heat pumps, this credit applies to eligible property placed in service after October 3, 2008. Note that the credit for geothermal property, with the exception of geothermal heat pumps, has no stated expiration date.

Microturbines. The credit is equal to 10% of expenditures, with no maximum credit limit stated (explicitly). The credit for microturbines is capped at $200 per kW of capacity. Eligible property includes microturbines up to two megawatts (MW) in capacity that have an electricity-only generation efficiency of 26% or higher.

Combined Heat and Power (CHP). * The credit is equal to 10% of expenditures, with no maximum limit stated. Eligible CHP property generally includes systems up to 50 MW in capacity that exceed 60% energy efficiency, subject to certain limitations and reductions for large systems. The efficiency requirement does not apply to CHP systems that use biomass for at least 90% of the system's energy source, but the credit may be reduced for less-efficient systems. This credit applies to eligible property placed in service after October 3, 2008.

In general, the original use of the equipment must begin with the taxpayer, or the system must be constructed by the taxpayer. The equipment must also meet any performance and quality standards in effect at the time the equipment is acquired. The energy property must be operational in the year in which the credit is first taken.

Significantly, The American Recovery and Reinvestment Act of 2009 repealed a previous restriction on the use of the credit for eligible projects also supported by "subsidized energy financing." For projects placed in service after December 31, 2008, this limitation no longer applies. Businesses that receive other incentives are advised to consult with a tax professional regarding how to calculate this federal tax credit.

* The American Recovery and Reinvestment Act of 2009, which allows PTC-eligible facilities to use the 30% ITC, has implications for some technologies that were already potentially eligible for either incentive in some form. Certain geothermal and open- or closed- loop biomass systems (including biomass CHP projects) now qualify for a 30% tax credit through December 31, 2013, the in-service deadline for these technologies under the PTC. Wind-energy systems of all sizes -- not only systems of 100 kW or less -- also now qualify for the 30% ITC through the wind-energy PTC in-service deadline of December 31, 2012. Applicants should refer to the eligibility definition contained in the PTC to determine if and how their project might qualify for this treatment.

The Writ of Quominus , or Writ of Quo Minus , was a writ and legal fiction which allowed the Court of Exchequer to obtain a jurisdiction over cases normally brought in the Court of Common Pleas . The Exchequer was tasked with collecting the King's revenue, and the legal fiction worked by having the plaintiff in a debt case claim that he was a debtor to the king, and that the defendant's debt prevented him paying the King. As such, the defendant would be arrested, and the case heard by the Exchequer. The writ's predecessors were in use from at least 1230, and it was in common (albeit strict) use during the 16th century. The use continued into the 19th century, until all original writs were abolished in 1883.

Writ

The Court of Exchequer 's main task was collecting royal revenues and taxes, partially through ensuring that debts to The Crown were paid. [ 1 ] It soon developed the ability to hear "common" cases, usually heard by the Court of Common Pleas , and did so through the writ of quominus . The origins of the writ are unknown, although some academics link it to a process through which a claimant could bring a claim jointly with the King or in part payment towards his debt to the King, in cases where the King had an interest. [ 2 ] The earliest record of a similar writ is 1230, although not with the quo minus wording. [ 3 ] The use was similar to that of the Bill of Middlesex , a similar legal fiction used by the Court of King's Bench ; where a plaintiff claims money from a defendant for payment of a debt, the plaintiff would claim to be a debtor to the King, unable to pay his money to the King because of the defendant's debt. [ 4 ]

If this legal fiction was successful, the defendant would be arrested and brought before the Court of Exchequer, where the case would be heard. [ 5 ] By the 16th century, the writ was commonly used in the Court of Exchequer, although fairly strictly; when taking a case the Court would investigate whether there was any benefit to the King in hearing it, and if not would refer the case to another court. [ 6 ] There was little interruption by the Court of Common Pleas, mainly due to their ongoing struggle with the Court of King's Bench over the Bill of Middlesex, which occupied most of their time. [ 7 ] Wurzel suggests that the introduction and widespread use of this writ was not due to any arrogance on the part of the Exchequer, but rather because they felt that as "the most ancient" court they should have superior jurisdiction. [ 8 ] The writ continued into the 19th century, [ 9 ] although it was abolished with the rest of the original writs through the Civil Procedure Rules of the Supreme Court of Judicature in 1883. [ 10 ]

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND CADS: No. The schedule is set as follows: Transcript due for Orig Clerk USDC, Sacramento on 12/22/2009. Certificate of record due 12/29/2009. Appellant T. W. Arman, Appellant William A. Logan Jr. and Appellant Logan & Giles LLP opening brief due 02/08/2010. Appellee State of California and Appellee United States of America answering brief due 03/09/2010. Appellant's optional reply brief is due 14 days after service of the answering brief. [7112437] (GR)

Filed order MOATT: (EC)Within 21 days after the date of this order, appellants shall move for voluntary dismissal of this appeal or show cause why it should not be dismissed for lack of jurisdiction. If appellants do not comply with this order, the Clerk shall dismiss this appeal pursuant to Ninth Circuit Rule 42-1. Briefing is suspended pending further order of the court. [7159804] (KD)

Filed order (MARY M. SCHROEDER and EDWARD LEAVY): The court has received and reviewed the response to this court's order to show cause. The jurisdictional issue does not appear suitable for summary disposition. Accordingly, the order to show cause is discharged. The court strikes the filings submitted by John F. Hutchens, a non-party to this appeal, received on February 11, 2010, March 2, 2010 and March 8, 2010, from the docket. If appellant has not already done so, appellant shall within 14 days after the date of this order, designate any reporter's transcripts or serve on appellee a statement indicating that appellant does not intend to order any transcripts. See 9th Cir. R. 10-3.1(a). If appellant designates transcripts, the transcripts will be due April 26, 2010. The opening brief and excerpts of record are due May 26, 2010; the answering brief is due June 25, 2010; and the optional reply brief is due within 14 days after service of the answering brief. [7262669] (AF)

14 day oral extension by phone of time to file Appellant Logan & Giles LLP brief. Appellant Logan & Giles LLP opening brief due 06/09/2010. Appellee State of California and Appellee United States of America answering brief due 07/09/2010. The optional reply brief is due 14 days after service of the appellee brief. [7350286] (TH)

Filed clerk order: The opening brief [ 13 ] submitted by William A. Logan, Jr. and Logan & Giles LLP is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a blue cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7368096] (WP)

06/11/2010

16

Filed Appellants William A. Logan, Jr. and Logan & Giles LLP excerpts of record in 2 volumes. Served on 06/09/2010. [7374030] (WP)

14 day oral extension of time granted to appellee USA. The answering brief for appellee USA is due 7/23/2010. The optional reply brief is due 14 days after service of the last-served answering brief. [7390098] (LB)

Filed clerk order: The answering brief [ 21 ] submitted by USA is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a red cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7417446] (WP)

07/26/2010

23

Filed Appellee USA excerpts of record in 1 volume. Served on 07/23/2010. [7417457] (WP)

Filed clerk order: The reply brief [ 26 ] submitted by William A. Logan, Jr. and Logan & Giles LLP is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a gray cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7450466] (WP)

14 day oral extension of time granted to appellee USA. The answering brief for appellee USA is due 7/23/2010. The optional reply brief is due 14 days after service of the last-served answering brief. [7390098] (LB)

Filed clerk order: The answering brief [ 21 ] submitted by USA is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a red cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7417446] (WP)

07/26/2010

23

Filed Appellee USA excerpts of record in 1 volume. Served on 07/23/2010. [7417457] (WP)

Filed clerk order: The reply brief [ 26 ] submitted by William A. Logan, Jr. and Logan & Giles LLP is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a gray cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7450466] (WP)

“The Clean Air Act does not authorize the imposition of sanctions for conduct that complies with a state implementation plan that the EPA has approved,” U.S. Circuit Judge Richard Posner wrote in a 12-page decision. “The blunder was unfortunate but the agency must live with it.”

The appeals court also said that U.S. District Judge Larry J. McKinney , who presided over the trial in Indianapolis, improperly admitted expert testimony proffered by the EPA.

Duke said the work at the plants constituted routine maintenance and federal regulations weren't violated.

The mere execution of a lease does not necessarily make a tenant liable as an owner or operator under CERCLA § 107(a). However, as explained below, EPA recognizes the uncertainty regarding the potential liability of certain tenants under CERCLA, and the Brownfields Amendments’ explicit reference to tenants, and offers some general guidance below to be used by EPA in exercising enforcement discretion.
This memorandum addresses those circumstances in which EPA, on a site-specific basis, intends to exercise its enforcement discretion not to enforce against the following categories of tenants:
•A tenant whose lease gives sufficient indicia of ownership to be considered an “owner” and who meets the elements of §§ 101(40)(A)-(H) and 107(r)(1).

The rule of law also encompasses the idea that the law should consist of general principles and not make special exceptions of particular groups, individuals or residents of particular regions etc.

1 Energy: Many Superfund cleanups involve energy intensive technologies. Green remediation strategies focus on opportunities to improve energy efficiency and use renewable energy sources.
2 Air and atmosphere: Many Superfund cleanups involve onsite and offsite emissions that may be reduced by applying the most appropriate advanced technologies and sound field practices.
3 Water: Superfund cleanups may also involve consumption of water. Green remediation strategies focus on reducing water consumption, and reusing treated water.
4 Land and ecosystems: Superfund sites often involve degraded onsite and offsite ecosystems and may have conditions that make the site unsafe for human or other use. Green remediation strategies focus on remedial actions that minimize further harm to the area, protect land resources and ecosystems at or near the site, and foster the return of sites to ecological, economic, social, or other uses.
5 Materials and waste: Site remediation may use significant amounts of raw materials and sometimes generates its own hazardous and non-hazardous wastes, including materials and debris that often are shipped offsite. Green remediation strategies offer opportunities to reduce materials consumption and waste generation, use recycled and local materials and spent products, and purchase environmentally preferred products.

Funding (grants, loans, bonds, etc.)
Information current as of July 2009; please refer to www.dsireusa.org and the federal Web sites provided, or contact the points of contact identified above for more up to date information. Federal Incentives for Clean and Renewable Energy – Page 1
Department of Energy (DOE) Recovery and Reinvestment Funding Opportunities
www.energy.gov/recovery/funding.htm
The American Recovery and Reinvestment Act of 2009 (ARRA) designates $16.8 billion for the Office of Energy Efficiency and Renewable Energy (EERE) divided across several EERE programs, including funding opportunities for biomass, solar, and wind projects, and block grants, which provide funds to units of local and state government, Indian tribes, and territories to develop and implement projects to improve energy efficiency and reduce energy use and fossil fuel emissions in their communities.
Clean Renewable Energy Bonds (CREB)
www.irs.gov/pub/irs-drop/n-09-33.pdf
Provides 0% interest bonds to finance public sector renewable energy projects. ARRA authorizes the allocation of as much as $1.6 billion for CREBs.
USDA Rural Energy for America Program (REAP)
www.rurdev.usda.gov/rbs/busp/9006grant.htm
Provides agricultural producers and rural small businesses with funding for renewable energy systems. Grants are limited to 25% of a proposed project's cost, and a loan guarantee may not exceed $25 million.
U.S. Department of Treasury – Renewable Energy Grants
www.treas.gov/recovery
Authorized by ARRA, provides grants equal to 30% of the basis of the property for solar, fuel cells, small wind turbines, and other qualified facilities.
U.S. Department of Energy (DOE) – Loan Guarantee Program
www.lgprogram.energy.gov
Offers loan guarantees for energy efficiency, renewable energy and advanced transmission and distribution projects. ARRA extends the authority of the DOE to issue loan guarantees and appropriated $6 billion for the program.
Tax Incentives (abatements, deductions, credits, etc.)
Renewable Electricity Production Tax Credit (PTC)
www.irs.gov/pub/irs-pdf/f8835.pdf
Provides a per kilowatt hour (kWh) tax credit for electricity generated by qualified energy resources during the taxable year. ARRA revised the credit by: (1) extending the in-service deadline; and (2) allowing facilities that qualify for the PTC to opt instead to take the federal business energy investment tax credit (ITC) (see below) or an equivalent cash grant (see above) from the U.S. Department of Treasury. Preliminary guidance is at www.irs.gov/pub/irs-drop/n-09-52.pdf.

Business Energy Investment Tax Credit (ITC)
Provides a tax credit for equipment placed in service before 2016, including 30% for solar, small wind turbine, and fuel cells. ARRA expanded the credit and repealed a previous limitation on the use of the credit for eligible projects also supported by "subsidized energy financing."
Qualifying Advanced Energy Project ITC
www.dsireusa.org/library/includes/incentive2.cfm?Incentive_Code=US02F&State=federal&currentpageid=1&ee=1&re=1
Provides an ITC to encourage the development of a U.S.-based renewable energy manufacturing sector. In any taxable year, the investment tax credit is equal to 30% of the qualified investment required for an advanced energy project. Any taxpayer receiving this credit may not also receive the Business Energy ITC.
Renewable Energy Production Incentive (REPI)
apps1.eere.energy.gov/repi/
Provides per kWh annual incentive payments of 1.5¢/kWh to new qualifying renewable energy facilities.
Technical Assistance and Other Incentives
Modified Accelerated Cost-Recovery System (MACRS)
www.dsireusa.org/documents/Incentives/US06Fa.htm
Allows businesses to recover investment in certain property through depreciation deductions. ARRA extended the terms of the program.

Funding (grants, loans, bonds, etc.)
U.S. Environmental Protection Agency (EPA) Brownfields Grants
www.epa.gov/swerosps/bf/pilot.htm
Assessment Grants www.epa.gov/brownfields/assessment_grants.htm
Provides funding for a grant recipient to inventory, characterize, assess, and conduct planning and community involvement related to brownfield sites. An eligible entity may apply for up to $200,000 to assess a site. Assessment proposals may be submitted by coalitions of eligible entities to pool their grant funds. Assessment coalitions may submit only one proposal up to $1,000,000. The performance period for these grants is three years.
Cleanup Grants
www.epa.gov/brownfields/cleanup_grants.htm
Provides funding to brownfield properties that have been determined to have an actual release or a substantial threat of release for a hazardous substance. An individual applicant can apply for up to $1,000,000. Coalitions of eligible entities may apply together under one applicant for up to $1,000,000 per eligible entity. Loans may also be used at sites with a release or substantial threat of release of a pollutant or contaminant that may present an imminent or substantial danger to public health or welfare.
Revolving Loan Fund Grants
www.epa.gov/brownfields/rlflst.htm
Provides funding to brownfield properties that have been determined to have an actual release or substantial threat of release of a hazardous substance. An individual applicant can apply for up to $1,000,000. Coalitions of eligible entities may apply together under one applicant forup to $1,000,000 per eligible entity.
Job Training Grants
www.epa.gov.brownfields/jobs.htm
Provides funding up to $200,000 over two years. Applicants must establish procedures to ensure that graduates will be employed in brownfields and/or environmental work that involve the assessment, cleanup, and/or redevelopment of contaminated sites with a focus on the graduates’ respective communities.
Training, Research, and Technical Assistance Grants
www.epa.gov/brownfields/trta.htm
Provides funding for eligible entities or nonprofit organizations to provide brownfields training, research, and technical assistance to individuals and organizations. The maximum amount of funding available per applicant is $1,500,000. Applicants may propose performance periods of up to five years, with the maximum annual funding not to exceed $300,000.
Tax Incentives (abatements, credits, deductions, etc.)
Brownfields Tax Incentive
www.epa.gov/brownfields/bftaxinc.htm
Allows environmental cleanup costs at eligible properties to be fully deductible in the year incurred, rather than capitalized and spread over a period of years. Hazardous substances or petroleum must be present or potentially present on the property. The taxpayer must incur the eligible expenses for use in a trade or business or for the production of income; or the property must be properly included in the taxpayer’s inventory. The taxpayer must obtain a statement from a designated state agency verifying
a property’s eligibility (see www.epa.gov/brownfields/stxcntct.htm for a list of contacts). The Brownfields Tax Incentive has been extended through December 31, 2009.

Technical Assistance

The Revitalization Handbook Addresses environmental cleanup liability risks associated with the revitalization of contaminated property or sites. Limitations on Liability There are different types of contaminated property in the United States. Prospective purchasers, developers, and lenders may hesitate to get involved with properties that have real or perceived contamination because they fear that they might be held liable under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or the Resource Conservation and Recovery Act (RCRA). The vast majority of contaminated properties, however, will not require EPA’s attention under CERCLA, RCRA, or any other federal law. More often, the state will oversee any needed cleanup under the state laws, many of which provide liability relief to prospective purchasers. Additional state-specific liability relief information is provided in the State-specific Incentive Sheets. Additional private mechanisms such as insurance and indemnity provisions can further clarify and account for potential liability issues. Brownfields Amendments www.epa.gov/brownfields/sblrbra.htm In January 2002, CERCLA was amended through enactment of Public Law 107-118, ("Brownfields Amendments"). Among other things, the Brownfields Amendments address certain liability concerns to encourage redevelopment. The Brownfields Amendments provide new liability protection for certain parties: innocent landowner, contiguous property owner, or bona fide prospective purchaser (BFPP). To be eligible, parties must: conduct All Appropriate Inquiries in compliance with 40 CFR Part 312, prior to acquiring the property; comply with all Continuing Obligations after acquiring the property; and not be affiliated with any liable party.
United States
Quick Facts

Number of EPA CERCLIS Sites: 12,617

Sites identified for potential investigation under the federal Superfund Program

Number of EPA Brownfields Properties: 17,759

Properties being funded or addressed under the EPA Brownfields Program

There may be some overlap among the categories listed and sites listed may not represent all potentially contaminated sites in the United States.

One year after the White House was supposed to chart a new course for the role of scientists and the integrity of scientific information in government, federal employees and the public continue to await reform.

On March 9, 2009, President Obama issued a memo instructing the White House Office of Science and Technology Policy to develop within 120 days recommendations for ensuring scientific integrity in the federal government. Obama's memo identified six principles OSTP was to follow in crafting the recommendations.

For a time, things appeared to be progressing swimmingly. OSTP invited public comment on the development of the recommendations, and even allowed people to comment on specific principles via the office's blog.

But then the 120-day mark, July 9, 2009, passed without an announcement. The months continued to pass by and still, no recommendations on scientific integrity, let alone a plan for implementing those recommendations.

Now, on the one-year anniversary of the due date, criticism of the White House is increasing. The group Public Employees for Environmental Responsibility says the scientific integrity recommendations are still very much needed and points to the Obama administration's handling of the BP oil disaster as evidence:

The muddled federal response to the massive BP oil spill in the Gulf of Mexico illustrates a lack of scientific transparency and candor in agency decision-making. Key examples include –

Without any scientific undergirding, EPA approved widespread application of oil dispersants deep underwater, despite the fact that these chemicals were designed for surface application. […]

The National Oceanic & Atmospheric Administration has flip-flopped on release of scientific observations about the size and nature of swelling underwater oil plumes;

Even amid such criticism, the White House remains silent. The White House's failure to, at the very least, provide the public with a status update on the scientific integrity principles is unacceptable – particularly when the issue involves restoring and maintaining integrity in government decisionmaking.

Update : Dan Froomkin at the Huffington Post points out that OSTP Director John Holdren discussed the scientific integrity recommendations on OSTP's blog June 18. Holdren wrote, “I am pleased to report here that the process, though slower than many (including myself) had hoped, has resulted in what I believe is a high-quality product that I anticipate finalizing and forwarding to the President in the next few weeks.”

AIG Asked Federal Judge To Deny Class-Action Status To Lawsuit Brought Against It By Other Insurance Companies

AIG asked a federal judge to deny class-action status to a lawsuit brought against it by other insurance companies, according to a Wall Street Journal report.
In documents that were filed in a federal district court in Illinois, lawyers for AIG accursed two insurers that are plaintiffs in the case of acting "at the behest" of Liberty Mutual Insurance.

AIG $2 Billion Treasury Backstop Shows Rating Firms' Influence

October 14, 2010,

Oct. 15 (Bloomberg) -- American International Group Inc.'s plan to exit U.S. ownership includes a new $2 billion backstop from the Treasury Department after credit raters said the company may need emergency capital as it regains independence.

The funds will be available when the government converts its preferred stake into common stock and can be drawn through March 2012 or until AIG sells at least $2 billion in shares, the New York-based insurer said in a Sept. 30 filing. AIG must maintain investment-grade ratings to execute its plan, which hinges on selling bonds and stock to private investors as the government withdraws support.

The 2008 bailout of AIG has been revised four times, swelling to $182.3 billion, in part to prevent rating downgrades that would trigger payments from AIG on mortgage-linked derivative contracts and hurt the firm's ability to attract insurance buyers. Moody's Investors Service, Fitch Ratings and Standard & Poor's have been criticized by lawmakers for giving top grades to housing-linked bonds before that market collapsed.

“By doing things like demanding more capital, rating firms have become the de facto regulator of AIG,” said Jonathan Hatcher, a Jefferies Group Inc. analyst in New York and a former Federal Deposit Insurance Corp. bank examiner. “This is very much a negotiation between AIG, the government and the rating agencies, and no one in that room wants egg on their face.”

The facility was created to address rating firms' concerns that AIG could be pressed for cash after the U.S. withdrawal begins in the first quarter, said two people with knowledge of the plan. AIG will owe a 5 percent dividend to Treasury on the funds, which are carved out of an existing bailout line. AIG paid 10 percent on Treasury's initial preferred stake and was then permitted to skip dividends as the bailout was revised.

‘Something Adverse'

“What do you do if something adverse were to happen in between the time the government winds down its support and the company fully completes its restructuring plan?” said Julie Burke, managing director at Fitch. Treasury's commitment “is a step to provide liquidity coverage during this interim period.”

AIG, once the world's largest insurer, protects property owners against natural disasters including hurricanes and earthquakes. Mark Herr, an AIG spokesman, and Mark Paustenbach, a Treasury spokesman, declined to comment.

The four main insurance rating firms, which include A.M. Best Co., affirmed their grades of AIG after the announcement last month of the company's restructuring plan. Standard & Poor's rates AIG's debt at A-, which is five levels higher than it would be without federal support.

‘Such Deference'

Moody's said that while the plan was a sign of progress, it raised the risk that the U.S. exits before AIG is ready. The firm “could become vulnerable if it does not fully revitalize its core operations and substantially exit non-core businesses before parting ways with the government,” Bruce Ballentine of Moody's said in an Oct. 4 note.

“Concerns about rating downgrades drove government policy in regard to AIG,” Elizabeth Warren, then-chairman of the Congressional Oversight Panel, wrote in June. “That this small group of private firms was able to command such deference from the federal government raises questions about their role within the marketplace and how effectively and accountably they have wielded their power.”

Rating firms provide judgments on how a debt issuer's actions may impact their credit grades, said Burke of Fitch and Ballentine of Moody's. Fitch “gives our opinions and highlights any positives or shortcomings but we don't set terms, all we do is provide our opinion,” Burke said.

Ballentine said that Moody's analysts “are observers, and we make credit judgments on steps the company has taken.”

Life Insurance

The facility will be created when Treasury converts its $49.1 billion investment in AIG into common stock for sale to the public, the company said.

As part of the restructuring, AIG will retire its Federal Reserve credit line, using sale proceeds of two non-U.S. divisions, AIA Group Ltd. and American Life Insurance Co. AIG will use as much as $22 billion from an existing Treasury line to help cover separate Fed obligations.

To repay remaining commitments, AIG may use additional funds from the sale of AIA, Alico, and a pair of Japan insurers. MetLife Inc. has agreed to buy Alico for about $15.5 billion, Prudential Financial Inc. struck a deal to acquire the Japan units for $4.8 billion, and AIA is planning a public offering in Hong Kong.

If necessary, AIG will also repay the U.S. with proceeds from sales of its Taiwan unit, plane-leasing business and stakes in mortgage-linked bonds contained in separate bailout funds.

Bailed Out

The insurer was first rescued in September 2008 by the Fed after rating downgrades triggered collateral payments to trading partners. Its bailout included a $60 billion Fed credit line, a Treasury investment of as much as $69.8 billion and up to $52.5 billion to buy mortgage-linked assets owned or backed by AIG.

Rating firms may have downgraded AIG if the government hadn't restructured its bailout in November 2008 and again in March 2009 to improve AIG's liquidity, Treasury Chief Restructuring Officer Jim Millstein said in May. Concern about rating actions also constrained the government's ability to demand discounts from AIG's trading partners as they wound down derivatives, he said.

Downgrades below investment grade would have been a “death knell” to AIG's ability to sell policies, Millstein said.

--With assistance from James Sterngold in New York. Editors: Dan Kraut, Dan Reichl

To contact the reporter on this story: Hugh Son in New York at hson1@bloomberg.net

Iron Mountain Mine strategy outlines specific action to ensure a protective remedy within the Superfund statutory and regulatory framework, as established by the Comprehensive Environmental Response, Compensation, and Liability Act and the National Oil and Hazardous Substances Pollution Contingency Plan. Opportunities to decrease the environmental footprint and maximize the environmental outcome of a cleanup exist throughout a project life. Iron Mountain Mine Superfund Remediation Strategy sets out current regulation of the Superfund Remedial Program to eliminate the demand placed on the EPA during delisting.

Many of the strategic actions can be addressed through policy and guidance compliance, resource development, and attention to the rule of law:

Maximize use of renewable energy to power site operations, and identify methods for increasing energy efficiency;

Remedy optimization starting in fiscal year 2010;

Maximize efficient use of natural resources and energy during remedial actions;

Integrate energy sources and encourage best operational practices

Perfect and deploy technology for the reuse of treated water and increase potable water supply and irrigation with conservation, recharge of aquifers;

Identify additional onsite or offsite uses of materials or energy otherwise considered waste;

Include language in statements of work for removal action, remedial design, and remedial action procurement contracts; and

Help communities establish networks and training programs that enable citizens to gain proficiency and expertise.

Taking a page from the environmentalists' playbook, West Virginia will focus on whether EPA met its procedural requirements—such as public comment—when considering stricter standard and reviewing the MTR permit.

Governor Manchin is running for the Senate seat formerly occupied by the late Senator Robert Byrd. Polling to date shows a very close race , and Governor Manchin will certainly take advantage of what, at least in West Virginia, would be considered positive press. (The Governor did claim that the suit has been in the works since before Senator Byrd's death.)

The law firm representing West Virginia in the suit, curiously enough, is Bailey and Glasser: the same firm that won an appeal about ten years ago after the late U.S. District Judge Charles H. Haden basically shut down mountaintop removal by prohibiting mining waste in permanent and seasonal streams. Judge Haden's ruling was a monumental, if short-lived, achievement for the environmental movement and is described in Coal River .

13. United States - State Relationship. The relationship between the United States
and the State regarding this Consent Decree and oversight and support of the Work by the Site
Operator shall be governed by the Memorandum of Understanding Regarding The Iron
22 1 Mountain Mine Superfund Site Between The United States Environmental Protection Agency
and The California Department Of Toxic Substances Control and The California Central Valley
Regional Water Quality Control Board ("MOU"), attached hereto as Appendix H.
A. Oversight and Support Agencies. EPA shall serve as the Oversight
Agency, and the State plaintiffs shall designate the State agency(ies) that will serve as the

Support Agency unless and until EPA and the State plaintiffs modify this relationship as set
2 forth in the MOU.

American International Group Inc.'s top officer said the company is “glimpsing sunshine” as it announced plans to repay its debt to the federal government, plus said it would sell two Japanese life insurance companies to U.S.-based life insurer Prudential Financial Inc. for $4.8 billion.

“You'll recall that in early August, we said we could see the light at the end of the tunnel,” said Robert Benmosche, chief executive of AIG, in an audio statement on the company's website. “Today, we are glimpsing at a lot of sunlight — an awful lot of sunlight.”

He said the announcement marks a momentous step forward for AIG, “and a new beginning for all of us.”

AIG Star Life Insurance Co. Ltd. and AIG Edison Life Insurance Co. Ltd. will be sold to Prudential Financial (NYSE: PRU) for $4.2 billion in cash, and Prudential will assume $600 million in third-party debt under the agreement.

Under the plan to repay its government bailout, AIG would pay back $20 billion in senior secured debt under the Federal Reserve Bank of New York Credit Facility through parent company resources and proceeds from the disposal of AIG assets, including the planned initial public offering in Hong Kong in late October of its Asian life insurance unit, AIA Group.

AIG said it expects AIA to generate at least $2 billion in operating profit for the fiscal year ended Nov. 30, 2010, ahead of AIA's IPO. AIG has moved forward with its IPO plans for AIA after a proposed $35.5 billion sale to U.K.-based Prudential plc fell through in June (BestWire, Sept. 28, 2010).

AIG also said its pending $15.5 billion sale of American Life Insurance Co. to MetLife Inc. would help fund the repayment.

The insurance group will also seek to return the FRBNY's $26 billion holding of preferred interest in two AIG-related special-purpose vehicles through proceeds from future asset monetizations.

AIG said it would also convert the remaining $49.1 billion in Troubled Asset Relief Program preferred shares outstanding into stock to be held by the U.S. Treasury. With that exchange, Treasury will own 92.1% of AIG's common stock. AIG said the conversion will not take place until after the FRBNY credit facility is repaid in full, and the U.S. Treasury is expected to sell its stake in AIG on the open market.

Industry watchers had warned that if the shares are sold too quickly, it could dilute the value of the company and its stock.

Although these actions will result in a streamlined and — through the reduction of debt — strengthened AIG balance sheet, the company's ratings have been heavily based on the U.S. government provision of support, including availability of significant liquidity, A.M. Best Co. commented. With the removal of this support, AIG will need to stand on its own, re-establish itself in the capital markets, restore shareholder confidence (particularly with institutional investors) and demonstrate its ability to maintain sufficient liquidity, which is no longer accessible through government sources, A.M. Best said.

Most AIG insurers have current Best's Financial Strength Ratings of A (Excellent). A.M. Best said AIG's issuer credit rating of bbb is unchanged following the announcement and that the rating outlook remains negative.

As of Sept. 20, AIG (NYSE: AIG) still owed the U.S. government about $128.2 billion in debt (BestWire, Sept. 20, 2010).

Japan is “a market we know well. A market where we've had great success and momentum over the last 30 years,” said John Strangfeld, chairman and CEO of Prudential Financial, in a conference call Sept. 30.

Strangfeld noted Japan is the third-largest economy in the world, and the second-largest life insurance market. The acquisition of the AIG companies will allow Pru to broaden its distribution and “significantly increase the scale of our operations in Japan.”

The AIG Star and AIG Edison transactions are expected to close in the first quarter of 2011, subject to regulatory approval and other closing conditions.

The transaction is expected to result in a $1.2 billion pretax goodwill impairment charge on AIG's third-quarter results.

Shares of AIG were trading at $37.93 the morning of Sept. 30, up 1.28% from the previous close.

Shares of Prudential were trading at $54.10, down 4.30%. Prudential Insurance Company of America currently has a Best's Financial Strength Rating of A+ (Superior).

OLDWICK, N.J., SEPTEMBER 30, 2010 A.M. Best Co . has commented that the issuer credit rating of "bbb" of American International Group, Inc . (AIG) (New York, NY) [NYSE: AIG] is unchanged following the announcement of actions to restructure the financial assistance provided to AIG by the U.S. Treasury Department and the Federal Reserve Bank of New York (FRBNY). The rating outlook remains negative. The ratings of all AIG subsidiaries are unchanged.

The announcement of a plan to repay the FRBNY Credit Facility and to convert the various ownership interests of the U.S. Government to common equity, which will ultimately be sold to public investors, marks the beginning of the final phase of the process begun in September 2008 to stabilize AIG. While the specific details of the plan are now being made public, it has been the expectation since the initiation of the government's involvement that such involvement would not be permanent. As such, the announcement of this final plan is not itself a trigger for rating action by A.M. Best.

Under the proposal, the line of credit extended to AIG by the FRBNY will be repaid before the end of the first quarter of 2011, primarily using proceeds from the initial public offering of AIA Group Limited (AIA) and the previously-announced sale of American Life Insurance Company (ALICO) to MetLife, Inc . In addition, most of the preferred interests in special purpose vehicles (SPVs) established to facilitate the sale of AIA and ALICO currently held by the FRBNY will be transferred to the U.S. Treasury Department in a series of transactions. These two actions will result in the repayment of the outstanding balance on the FRBNY Credit Facility of approximately $20 billion and termination of the Facility.

Following the transactions above, the $49 billion of Series E and F preferred shares held by the U.S. Treasury as well as the Series C preferred shares held by the AIG Credit Facility Trust will be converted into approximately 1.7 billion common shares, which the Treasury will sell over time as market conditions permit. The Treasury's preferred interest in the SPVs will be redeemed through future asset monetizations of designated assets, and these obligations are without recourse to AIG.

Concurrently, the FRBNY and U.S. Treasury have agreed to create a bridge finance facility of approximately $2 billion derived from the Series F preferred shares. These Series F shares will be converted to Series G mandatory convertible preferred stock, which will be available for AIG to draw upon until March 31, 2012, or until AIG completes its primary equity offering of no less than $2 billion, whichever occurs first. The Series G will automatically convert into AIG Common Stock on March 31, 2012, unless it is not drawn or is drawn and redeemed prior to that date.

Although these actions will result in a streamlined and—through the reduction of debt—strengthened AIG balance sheet, the company's ratings have been heavily based on the U.S. Government provision of support, including availability of significant liquidity. With the removal of this support, AIG will need to stand on its own, re-establish itself in the capital markets, restore shareholder confidence (particularly with institutional investors) and demonstrate its ability to maintain sufficient liquidity, which is no longer accessible through government sources. A.M. Best will continue to monitor the execution of the multi-faceted plan and will review the ratings as events emerge.

Ten-Year Swap means an agreement reached between the Company and the Scheduled
Contractor whereby the Scheduled Contractor is prepaid for the first ten years of Expected
Clean-Up Costs and the Company receives certain financial assurances as more fully described
in the Agreement for Insurance for and Work at the Iron Mountain Superfund Site.
oo. Termination Date means the earliest of the following:
1. The ending date of the period set forth in Item 3 of the Declarations; or
2. Cancellation of the Policy pursuant to Section VI, Paragraph F.
pp. Trust One means the Iron Mountain Mine Remediation Trust I, established pursuant to, and
governed by, the laws of the State of California, which shall hold certain rights, title, and other
interests with respect to certain plant and fixed equipment at the Site.
QQ. Trust Two means the Iron Mountain Mine Remediation Trust II established pursuant to,
and governed by, the laws of the State of California and established to qualify as a trust
established pursuant to Section 4688 of the United States Internal Revenue Code.

12. Financial Assurance
a) In the event the Company ceases to be at least "A rated" by A.M. Best, or an equal or better
rating by a leading industry rating agency, should A.M. Best not exist, the Company shall provide
prompt notice to the Named Insureds and financial assurance in one or more of the following
forms:
1. A

(f) Financial test and corporate guarantee for closure. (1) An owner or operator may satisfy the requirements of this section by demonstrating that he passes a financial test as specified in this paragraph. To pass this test the owner or operator must meet the criteria of either paragraph (f)(1)(i) or (ii) of this section:

(i) The owner or operator must have:

(A) Two of the following three ratios: a ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5; and

(B) Net working capital and tangible net worth each at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates; and

(C) Tangible net worth of at least $10 million; and

(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates.

(ii) The owner or operator must have:

(A) A current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's; and

(B) Tangible net worth at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates; and

(C) Tangible net worth of at least $10 million; and

(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates.

(2) The phrase “current closure and post-closure cost estimates” as used in paragraph (f)(1) of this section refers to the cost estimates required to be shown in paragraphs 1–4 of the letter from the owner's or operator's chief financial officer (§264.151(f)). The phrase “current plugging and abandonment cost estimates” as used in paragraph (f)(1) of this section refers to the cost estimates required to be shown in paragraphs 1–4 of the letter from the owner's or operator's chief financial officer (§144.70(f) of this title).

(3) To demonstrate that he meets this test, the owner or operator must submit the following items to the Regional Administrator:

(i) A letter signed by the owner's or operator's chief financial officer and worded as specified in §264.151(f); and

(ii) A copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and

(iii) A special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:

(A) He has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and

(B) In connection with that procedure, no matters came to his attention which caused him to believe that the specified data should be adjusted.

(4) An owner or operator of a new facility must submit the items specified in paragraph (f)(3) of this section to the Regional Administrator at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal.

(5) After the initial submission of items specified in paragraph (f)(3) of this section, the owner or operator must send updated information to the Regional Administrator within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in paragraph (f)(3) of this section.

(6) If the owner or operator no longer meets the requirements of paragraph (f)(1) of this section, he must send notice to the Regional Administrator of intent to establish alternate financial assurance as specified in this section. The notice must be sent by certified mail within 90 days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the requirements. The owner or operator must provide the alternate financial assurance within 120 days after the end of such fiscal year.

(7) The Regional Administrator may, based on a reasonable belief that the owner or operator may no longer meet the requirements of paragraph (f)(1) of this section, require reports of financial condition at any time from the owner or operator in addition to those specified in paragraph (f)(3) of this section. If the Regional Administrator finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of paragraph (f)(1) of this section, the owner or operator must provide alternate financial assurance as specified in this section within 30 days after notification of such a finding.

(8) The Regional Administrator may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his report on examination of the owner's or operator's financial statements (see paragraph (f)(3)(ii) of this section). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The Regional Administrator will evaluate other qualifications on an individual basis. The owner or operator must provide alternate financial assurance as specified in this section within 30 days after notification of the disallowance.

(9) The owner or operator is no longer required to submit the items specified in paragraph (f)(3) of this section when:

(i) An owner or operator substitutes alternate financial assurance as specified in this section; or

(ii) The Regional Administrator releases the owner or operator from the requirements of this section in accordance with §264.143(i).

(10) An owner or operator may meet the requirements of this section by obtaining a written guarantee. The guarantor must be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a “substantial business relationship” with the owner or operator. The guarantor must meet the requirements for owners or operators in paragraphs (f)(1) through (8) of this section and must comply with the terms of the guarantee. The wording of the guarantee must be identical to the wording specified in §264.151(h). The certified copy of the guarantee must accompany the items sent to the Regional Administrator as specified in paragraph (f)(3) of this section. One of these items must be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter must describe the value received in consideration of the guarantee. If the guarantor is a firm with a “substantial business relationship” with the owner or operator, this letter must describe this “substantial business relationship” and the value received in consideration of the guarantee. The terms of the guarantee must provide that:

(i) If the owner or operator fails to perform final closure of a facility covered by the corporate guarantee in accordance with the closure plan and other permit requirements whenever required to do so, the guarantor will do so or establish a trust fund as specified in §264.143(a) in the name of the owner or operator.

(ii) The corporate guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the Regional Administrator. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Regional Administrator, as evidenced by the return receipts.

(iii) If the owner or operator fails to provide alternate financial assurance as specified in this section and obtain the written approval of such alternate assurance from the Regional Administrator within 90 days after receipt by both the owner or operator and the Regional Administrator of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternative financial assurance in the name of the owner or operator.

demonstration that the Company satisfies the requirements of 40 C.F.R. Part 264.143(f)

for the Terminal Payment;
2. A guarantee to perform the obligations of the Company under the Terminal Payment by one
or more parent corporations or subsidiaries, or by one or more unrelated corporations that
have a substantial business relationship with the Company;
3. A surety bond guaranteeing the Terminal Payment;
4. One or more irrevocable letters of credit equaling the Terminal Payment; or
5. A trust fund.
b) If the Company seeks to provide financial assurance through a guarantee by a third party
pursuant to Paragraph a.2 above, the Company shall demonstrate that the guarantor satisfies the
requirements of 40 C.F.R. Part 264.143(f). If the Company seeks to demonstrate its ability to
provide financial assurance by means of the financial test or the corporate guarantee pursuant to
paragraph a.2 it shall resubmit sworn statements conveying the information required by 40 C.F.R.
Part 264.143(f) annually, on the anniversary of the effective date of the Policy. In the event that
the Oversight Agency, after a reasonable opportunity for review and comment by the Support
Agency, determines at any time that the financial assurances provided pursuant to this section
are inadequate, the Company shall, within 30 days of receipt of notice of the Oversight
Agency's determination, obtain and present to the Oversight Agency for approval one of the
other forms of financial assurance listed above. The Company's inability to demonstrate financial
ability to perform under the Policy shall not excuse performance of such activities.
c) The Company may change the form of financial assurance provided under this section at any
time, upon notice to and approval by the Oversight Agency, provided that the new form of
assurance meets the requirements of this section. In the event of a dispute, the Company may
change the form of the financial assurance only in accordance with the final administrative or
judicial decision resolving the dispute.

Last year, the United States joined the global community in endorsing the Rome Principles for the eradication of hunger and global food insecurity. The principles recognize that no one country alone, no matter how generous, can win the fight to end hunger, and they embrace not only the coordinated action of the donors and our developing country partners, but also include a strong role for the multilateral organizations. The United States regularly participates in all global multilateral organizations related to hunger relief and food security. In fact, as the U.S. Representative, my team and I serve as the leaders for our work in the various Rome-based forums.

This week, I, along with Ambassador Patricia Haslach, Deputy Coordinator for Diplomacy for the Global Hunger and Food Security Initiative, and an interagency team from the U.S. State Department, USAID, the Millennium Challenge Corporation, and the U.S. Department of Agriculture are representing the United States at the 36th Committee on World Food Security (CFS). The CFS is a unique international body — one where all stakeholders, including member states, civil society organizations, and the private sector, are represented.

Working together with our partners, we will create a CFS that serves as the global platform for sharing best practices , identifying gaps, and creating tools that will support the work of countries to develop and implement their own sustainable agriculture programs. These tools will include a mapping instrument that will help us all better understand the results realized from our agriculture and nutrition related investments and activities. We're also working to ensure that CFS supports locally owned and created country-led processes. The country-led process represents a key factor in our Feed the Future Initiative . This process recognizes the importance of empowering countries while providing the tools necessary to accelerate the growth of their agricultural sector, reduce food insecurity, and improve nutrition, particularly in young children.

Reducing global food insecurity and malnutrition is no easy task. But, I am reasonably optimistic that we will reach our goal. This week, I witnessed the true value of the CFS (and the work of the United States) in this fight to end hunger and malnutrition when representatives from Rwanda, Bangladesh , and Haiti each made presentations. Their presentations included honest stories of the challenges they have faced in their countries and what they are doing to overcome those obstacles. By sharing their experiences and lessons learned, they in turn helped the international community (particularly other developing countries) understand how to better implement sustainable food security strategies and ultimately eliminate hunger and improve nutrition worldwide.

AIG currently has the equivalent of a single-A-minus credit rating from Moody's Investors Service and Standard & Poor's, but that investment-grade rating is largely due to the financial support the U.S. government has provided.

Absent government support, AIG would have a noninvestment-grade, or "junk," credit rating. AIG chief executive Robert Benmosche has said the company is trying to get its "stand-alone" rating back to single-A, which would entail sharply lowering its debt, maintaining or improving the profitability of its insurance businesses, reducing risk and disposing of noncore units. Last week, AIG reached a deal to sell 80% of its debt-heavy and loss-making consumer-finance business, removing a key drag on its finances.

Over the past year, various banks and insurers that received funds from the Treasury's Troubled Asset Relief Program repaid what they owed the government after raising money from investors from stock and debt sales. "A necessary step for other institutions was accessing the capital markets on their own before they went to the government with a plan to repay TARP," said Robert Riegel, managing director of Moody's U.S. Insurance team. He notes, however, that AIG's situation is more complicated because of the size and scale of its bailout.

Much of what AIG owes the New York Fed is expected to be repaid with cash from asset sales, though a portion could come from new debt issues. The annual interest rate on AIG's loan from the New York Fed is currently about 3.35%.

The regional Fed bank is looking to recoup a separate $55 billion in equity holdings from sales of AIG's overseas life insurance businesses and from mortgage securities previously linked to the insurer. The Treasury Department separately has a $49 billion investment in AIG preferred shares, some of which are widely expected to be converted in the future into AIG common stock and sold to investors.

According to MarketWatch, following the latest news, Standard & Poor's Rating Services announced that it would maintain AIG's credit rating at A-, but plans to conduct a review in light of the plan, which it called “a positive credit development.” S&P is likely to raise its stand-alone credit rating for the firm from BB to BBB+, and possibly even higher by the end of 2010.

The rules for push-down accounting, which the Securities and Exchange Commission's staff laid out in a 2001 memo , hinge on rigid numerical tests for determining if a company has become “substantially wholly owned” by another entity. The method is prohibited with less than 80 percent ownership, permitted if ownership is 80 percent or more but less than 95 percent, and required (with some exceptions) at 95 percent or more.

The process works like this. When a transaction or series of deals results in a company becoming substantially owned by another entity, the new owner allocates its purchase price among the assets and liabilities it acquired, using their newly assigned fair values. Those values then are pushed down to the acquired company, which can cause either positive or negative adjustments to the items on its balance sheet.

Real World Numbers

The effects of push-down accounting on AIG's books probably would be sizeable. As of June 30 , AIG said 54 percent of the $850.5 billion of assets on its balance sheet were measured at fair value on a recurring basis, meaning 46 percent weren't. Just 4 percent of its $745.9 billion of liabilities were.

One example of an asset carried at cost, rather than fair value, is a $29 billion line on AIG's books called deferred acquisition costs, which include sales commissions and other expenses related to acquiring and renewing customers' insurance policies. These deferred costs aren't saleable. It is money out the door. Their fair value wouldn't be anywhere close to $29 billion in the real world. Yet that figure represented 38 percent of AIG's shareholder equity as of June 30.

Other fair-value adjustments could result in increases to AIG's equity. For instance, AIG said the fair values for some liabilities were lower than what its balance sheet showed.

An AIG spokesman, Mark Herr , declined to comment for this column, as did a Treasury spokesman, Mark Paustenbach . My guess is that neither Treasury nor AIG wants to highlight that push- down accounting is back on the table as an option. If more investors knew that it was, they just might demand the additional transparency.

IX. ACCESS AND INSTITUTIONAL CONTROLS
3 22. The Settling Parties shall comply with the access and institutional control
4 requirements contained in the Access Agreement attached to this Consent Decree as Appendix
5 M.
6 23. The Site Operator shall comply with the access and institutional control
7 requirements contained in the SOW.
8 24. If the Oversight Agency or the Support Agency determines that land/water use
9 restrictions in the form of state or local laws, regulations, ordinances or other governmental
10 controls are needed to implement the interim remedies selected in the RODs, ensure the
11 integrity and protectiveness thereof, or ensure non-interference therewith, the Site Operator
12 shall cooperate with the efforts of the Oversight Agency or Support Agency to secure such
13 governmental controls, in accordance with the SOW.
14 25. Subject only to the provisions of this Consent Decree governing the specific
15 rights and obligations of the Released Parties and the Site Operator, the United States and the
16 State retain all of their access authorities and rights, as well as all of their rights to require
17 land/water use restrictions, including enforcement authorities related thereto, under CERCLA,
18 RCRA and any other applicable federal or state law, statutes, or regulations.
19 X. REPORTING REQUIREMENTS
20 26. The Site Operator shall comply with all reporting requirements as specified in
21 the SOW.

5. MATTERS NOT COVERED BY THE CONSENT DECREE.
5.1 Decisions relating to remedy selection.
5.1.1 Decisions regarding selection of future remedial actions. The Parties to
this MOU agree that with respect to any future investigation and remedy
selection regarding the IMM Site, the Parties will follow the process and
procedures set forth in CERCLA and the NCP. The Parties further
understand and agree that nothing in the MOU limits the State's rights
under Section 114 of CERCLA or any other applicable law, or the rights
and responsibilities of any Party under Section 121 of CERCLA or any
other applicable law.
5.1.2 Decisions regarding amending prior remedial actions. The Parties to
this MOU agree that with respect to adopting an ESD or amending the

remedial actions in place at the time of the entry of the Consent Decree or
remedies implemented after the entry of the Consent Decree, EPA and the
State will follow the process and procedures set forth in CERCLA and the
NCP. The Parties further understand and agree that nothing in this MOU
limits the State's rights under Section 114 of CERCLA or any other
applicable law, or the rights and responsibilities of any Party under
Section 121 of CERCLA or any other applicable law.
5.1.3 Waiver of ARARs for existing and future RODs. The Parties to this
MOU agree to consider the appropriateness of a permanent waiver of the
applicable or relevant and appropriate requirement ("ARAR") with respect
to the standard for receiving waters, including, but not limited to Spring
Creek, as to existing and future RODs for the IMM Site. If at some point
EPA determines that no further RODs will be issued for the IMM Site,
EPA will inform the State in writing at the earliest possible date and the
issue of the waiver of ARARs will be reviewed as soon as thereafter as
practicable.
5.1.4 Changes to CERCLA. If in the future CERCLA changes in a material
manner so as to impact the expectation of the Parties with respect to the
process arid procedure for amending remedies at a federal Superfund site,
the Parties will agree to meet and formulate a process for future remedy
selection that is consistent with applicable state and federal laws in force at
that time.

See also Madison 's explanation of the purpose of the 9 th Amendment in response to Hamilton 's objection in Federalist 84 :

1. “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general (i.e. Federal) government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4 th resolution (i.e. the original draft of the 9 th amendment)” (James Madison, U.S. House of Representatives, June 8, 1789)

2. “The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution” (An early version of the 9 th amendment—the last clause of the 4 th resolution—as submitted by James Madison, June 8, 1789).

CERCLA allows PRPs to seek contribution from one another in order to
apportion response costs equitably. But CERCLA bars contribution
claims against PRPs that have obtained administratively
or judicially approved settlements with the government.

CERCLA thus provides an incentive for PRPs to settle by
leaving non-settling PRPs liable for all of the response costs
not paid by the settling PRPs.

We consider a question that has split the federal courts:
May a non-settling PRP intervene in litigation to oppose a
consent decree incorporating a settlement that, if approved,
would bar contribution from the settling PRP? We join the
Eighth and Tenth Circuits in holding that the answer is “yes.”

BRICK FLAT LIME SLUDGE FOR SALE - 500K TONS AVAILABLE

IRON MOUNTAIN MINE IS IN THE LIBRARY OF CONGRESS

Treasury puts AIG TARP loss at $5 billion

The government's most controversial bailout is still under water, if just barely.

Treasury said Tuesday in its two-year retrospective on the Troubled Asset Relief Program that the net cost of TARP's AIG ( AIG ) bailout at current market prices is $5.1 billion. The cost of the AIG bailout has been subject of considerable head scratching in recent days, with TARP winding down and the terms of federal assistance to AIG changing for the umpteenth time .

Moody's Investors Service affirmed American International Group's (AIG) A3 long-term issuer rating and negative outlook, reflecting the rating agency's concerns about the possible end of government support for the insurer.

Under the plan, AIG said it would repay its $20 billion direct debt to the Federal Reserve Bank of New York (FRBNY) and the $26 billion in interest the FRBNY has in two special purpose vehicles (SPVs) using its own resources and proceeds from other assets, including an initial public offering of American International Assurance Co. Ltd (AIA) on the Hong King Stock Exchange and proceeds from the $15.5 billion sale of American Life Insurance Co. (ALICO) to MetLife Inc.

Additionally, as part of the plan, $49.1 billion of preferred shares held by the Treasury Department would be converted into about 1.66 billion shares of AIG common stock. The Treasury will then sell the shares to the public over time.

Bruce Ballentine, Moody's lead analyst for AIG, said in a statement, “The proposed repayment plan signals AIG's progress in stabilizing its core insurance operations and exiting noncore businesses. It also points the way toward a sustainable capital structure.”

However, Moody's added that the plan “hastens the end of explicit government support for AIG, which has been an important consideration in the company's ratings.”

Moody's noted that the government will retain significant ownership of AIG for the near term, but the rating agency said it “believes that the ownership stake and implicit support will decline over the next couple of years. Therefore, the ratings of AIG and its subsidiaries will increasingly depend on their stand-alone credit profiles, raising the risk of downgrades if the credit metrics do not improve as expected.”

To attain a stable rating, Moody's said AIG must improve the intrinsic credit profiles of Chartis and SunAmerica Financial Group (SFG). AIG must also exit or de-risk noncore businesses, maintain robust liquidity within its major operations, and develop a standalone capital structure consistent with the company's current ratings.

Moody's said AIG could be downgraded if it fails to “improve certain credit metrics of the core insurance operations, such as profitability, reserve adequacy at Chartis and investment performance at SFG.”

Retention of noncore business risks that could strain capital and liquidity, and an inadequate standalone capital structure could also lead to a downgrade, Moody's said.

Explaining the AIG exit

Andrew Ross Sorkin's column today is entirely based on what he learned talking to Jim Millstein, the chief restructuring officer at Treasury, who seems to be very happy to talk now that he's officially announced Treasury's plan to exit its investment in AIG. I spoke to him for 70 minutes this afternoon, and now have a much clearer idea of how Treasury is thinking, how its math works, and why there's a disconnect between Treasury and critics like Kid Dynamite .

Millstein made a number of interrelated points.

First, the really big picture here is being missed. There's now an end in sight to a huge and enormously complex corporate restructuring, of an entity — AIG — which was too big to fail, too big to manage, and which had an enormous black hole at its heart known as AIG Financial Products. Today, AIG is set to emerge as a viable entity roughly half its former size, small enough to fail, with the black hole gone. That's not only a substantial achievement; it's also a good proof of concept when it comes to the FDIC's new resolution authority.

This involved a big strategic change of direction at AIG and Treasury. When Treasury installed Ed Liddy as AIG CEO in the immediate aftermath of the bailout, says Millstein, the idea was very much to sell off everything — essentially, to liquidate AIG entirely. But that's no longer the vision: instead, the idea is now to keep AIG going as a good-sized US insurance company, with a very strong property and casualty franchise and a solid life insurance franchise to boot. That company looks as though it's going to be worth something north of $60 billion, given its inherent profitability and general stock-market valuations of insurers.

But there's an enormous difference between an insurance company you're trying to liquidate, on the one hand, and an insurance company which you want to survive as a going concern, on the other: it's not just a difference of taking various assets off the auction block. Rather, it all comes down to credit ratings: in order to be viable as a going concern, any insurance company needs a solid investment-grade credit rating.

If AIG was just selling off its assets or putting its insurance operations into run-off mode, then its credit rating wouldn't matter so much — although the higher AIG's credit rating, the easier it becomes to unwind AIGFP's derivatives positions without facing enormous margin calls. But Treasury looked at the bids that AIG was receiving for its assets, and determined that they were being lowballed by the likes of MetLife, since potential buyers smelled a fire sale. As a result, Treasury needed to credibly be able to say that it didn't have to sell off all AIG's assets.

In order to do that, Treasury needed to take a large chunk of AIG's debt and convert it into some kind of equity. That's why Treasury ended up owning tens of billions of dollars in preferred stock: the ratings agencies don't consider preferred stock to be debt, and so they disregard it when assigning their ratings.

Now a lot of the arithmetic being done by the likes of Sorkin and KD is based on that preferred stock essentially being debt. After all, that's how AIG itself shows it on their website. But it's a very peculiar kind of debt: in fact, to a first approximation, it really is that nerdy joke, the zero-coupon perpetual bond. There's a dividend associated with the preferred stock, but AIG is under no obligation to pay it, and it's non-cumulative: if AIG doesn't pay the dividend then it doesn't remain on AIG's books as any kind of obligation. And there's no maturity date, either. So the obligation that AIG has to Treasury is essentially zero: it has to pay back $0 per year, in perpetuity.

The only real value to the preferred stock is that unless and until AIG starts paying the coupon, it can't make any dividend payments on its common stock. So the preferred stock is not entirely without value. But no one in their right mind would actually pay money for it.

So when Treasury swaps its preferred stock for common stock, it's swapping something with essentially zero secondary-market value for something much more liquid and marketable.

Of course, Treasury brought this on itself, back in February 2009, when it swapped cumulative preferred stock paying a 10 percent coupon for new non-cumulative preferred stock. Without that move, there would never have been any equity value in AIG at all — AIG would have been a loss-making entity in perpetuity. But of course Treasury owns most of the equity in AIG, so it essentially made the decision to swap debt in an insolvent AIG for equity in a solvent AIG. And the reasoning was that the liquidation value of an insolvent AIG was much lower than the market value of a solvent AIG which could operate as a going concern.

At some point, Treasury was always going to insist on converting its new zero-coupon perpetual bonds into something a bit more useful, like secured debt or unsecured debt or cumulative preferred stock or common stock. They were always a halfway house, a way of getting here from there. And in the end, Treasury decided that the easiest and most profitable thing to do would be to just convert them all into common stock.

I'm not sure I would have made the same decision. AIG is making about $8 billion a year at this point, which is more than enough to support a bit more in the way of debt without making too much of a dent in its credit rating. If Treasury had converted say $20 billion of its current preferred stock into new preferred stock paying a 5% coupon, that would pay Treasury $1 billion a year in perpetuity, and could probably be sold at or near par. Instead, that $1 billion a year is being valued on a p/e basis in the stock market, at between $8 billion and $12 billion. That's less than the $20 billion (ish) it would be worth if it looked more like debt.

But Treasury wants to exit its investment, and selling $20 billion of perpetual AIG preferred stock would be decidedly non-trivial. Selling AIG stock is a lot easier. So Treasury decided to simply convert everything to common stock, in an attempt to get out of the insurance business as quickly as possible.

Looked at this way, it's silly to assign hard dollar values to the Series E and Series F preferred stock and then complain when they're being swapped for equity worth less than that sum. Instead, the only number which matters is the total amount of money which Treasury ends up getting from selling off bits of AIG and, ultimately, AIG itself. And there's a secondary consideration, too: Treasury wants to do that sell-off as quickly as possible.

Treasury's exit strategy certainly maximizes the speed of the sell-off. And Millstein makes a credible case that at the end of the day, Treasury is going to get out of AIG more money than it put in — some $13 billion or so in profit. That sum is not nearly commensurate with the risk that Treasury took when it bailed out the insurer. But really, Treasury had no choice: when it was bailed out, AIG had a whopping $2.4 trillion in derivatives contracts, which would have caused major systemic consequences if they had been unwound in a Lehman-style forced liquidation. We would all be much poorer, today, if AIG had not been bailed out. Any profit on the bailout is just gravy.

So it's easy to get caught up in the weeds here. But rather than getting caught up with the relative valuations of Series C and Series F, the big picture is relatively simple: Treasury put about $47.5 billion into AIG, and the Fed added a bunch more. The Fed is soon going to get paid off in full, with interest. And Treasury is going to end up with an equity stake in AIG worth something north of $60 billion; it's optimistic that it'll be able to sell that stake in the market, much like it's selling off its Citigroup stake right now. That equity stake is a matter of choice; Treasury could have structured things many other ways, and probably could have ended up with something less liquid but more valuable if it had wanted to do so.

Millstein is a fan of common equity, and is looking forward to the day when he can start selling off the government's AIG stake in the secondary market. Then we'll be done with AIG, we won't have big losses to show for it, and we will have dealt with the AIGFP black hole in the interim. It's a pretty impressive achievement, all told. And the technical dynamics of exactly what the government is doing with its current slightly peculiar preferred stock are ultimately something of a distraction.

(A couple of footnotes, which don't fit into the broader narrative: right now, AIG has the right to borrow $22 billion more from Treasury, in the form of that Series F perpetual zero-coupon preferred stock, at any time. Under this exit plan, AIG has to use that whole credit line to pay off the Fed, and then needs to repay it with various asset sales, including the sale of the assets it's getting from the Fed. So the plan puts Treasury at less risk that suddenly it will have no choice but to send lots of money to a hungry AIG. And, AIG won't only be an insurance company: for the time being, it still owns an aircraft leasing company called ILFC. But it has said that ILFC is non-core, and it will be happy to sell it at the right price.)

It is well established that subject matter jurisdiction cannot be expanded or contracted “by prior action or
consent of the parties.” Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17-18 (1951)

NCP, 40 CFR§300.435(f)(2), states, “A remedy becomes ‘operational and functional' either one year after construction is complete, or when the remedy is determined concurrently by EPA and the State to be functioning properly and is performing as designed, whichever is earlier.

The Engineer Research and Development Center's (ERDC) Dam Inspection Team uses a mix of in-house personnel, Corps of Engineers' District personnel, and civilian consultants to help the U.S. Army Directorates of Public Works maintain compliance with regulations regarding dam safety.

Federal agencies are required by Public Law 92-367, as amended by Public Law 104-303, to inspect dams under their jurisdiction and to biennially report the data to the National Inventory of Dams (NID).

The ERDC Dam Inspection Team assists the Army's Installation Management Command and individual Army installations in complying with the Army's policy, as stated in Army Regulation 420-1. Army policy also requires that each installation have a current Emergency Action Plan (EAP) for each of the high- and significant-hazard dams and an EAP Standard Operating Procedure for low-hazard dams.

This week, the Interior Department released a new policy to protect scientific integrity in the department. OMB Watch joined other public interest groups in submitting comments on the department's draft policy in September. The new policy attempts to address concerns, raised in those comments and others, that the draft policy did not go far enough to prevent abuses of the department's scientific activities and decision making.

The new policy, released as an order of Interior Secretary Ken Salazar, drops many of the specifics of the draft policy. Instead, it establishes principles designed to be consistent with President Obama's 2009 scientific integrity memo . The particulars of the policy will be detailed in a future addition to the department's employee manual, as well as guidance and implementation plans developed by Interior bureaus and offices.

Interestingly, the new policy mentions that government-wide guidance on scientific integrity is "expected" in 2010 from the White House Office of Science and Technology Policy. That guidance, ordered in 2009 as part of the president's memo, is now more than a year overdue . Interior's statement suggests the guidance may finally be released before the end of this year.

WASHINGTON – Today U.S. Environmental Protection Administration Administrator Lisa P. Jackson addressed the newly-appointed members of the Farm, Ranch, and Rural Communities Federal Advisory Committee (FRRCC) during their first official meeting since being appointed. The FRRCC is an independent committee, established by EPA in 2008, that advises the agency on a wide range of environmental issues of importance to agriculture and rural communities. EPA also announced the new committee members, who were appointed in May.

This morning's remarks highlighted Administrator Jackson's ongoing efforts to engage American farmers and highlight opportunities for cooperation between the environmental and agricultural communities. Her speech follows EPA Deputy Administrator Bob Perciasepe's tour of Northern California farms last week, where he met with local farmers to see and discuss efforts from the agricultural sector to protect our nation's natural resources.

“EPA is working to ensure that American farmers, ranchers and rural communities are more environmentally sustainable and economically resilient than ever before,” said EPA Administrator Lisa P. Jackson. “America's farmers have a broad impact on everything from daily food prices to widespread environmental impacts to emerging fuel technologies. We need them to be part of our decision making process, and this meeting is yet another step in our engagement with the agricultural community.”

Due Process and the EPA's Enforcement of CERCLA: The Problem with Big Business Challenges to a Small Business Problem Scott Corley affiliation not provided to SSRN

April 15, 2010

Abstract:
In the past few years, a number of challenges have been mounted against the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Specifically a challenge mounted by the General Electric Company has asserted that the Environmental Protection Agency's (EPA) pattern and practice of enforcing CERCLA violates due process under the Ex Parte Young and Mathews v. Eldridge tests.

Using an assertion that constitutional challenges to CERCLA are only likely to succeed when (1) the property interest infringed by the government is not strictly monetary; (2) the statute calls for a complete lack of pre-deprivation procedures; and (3) the statute's purported delay of review actually results in the complete preclusion of review, this paper argues that the EPA's enforcement of CERCLA raises serious constitutional concerns when it is applied against small businesses, but not when it is enforced against large corporations. This is because large corporations like GE will be able to bear the decontamination costs associated with CERCLA and still mount judicial challenges at the end of the process while smaller businesses will lose financing due to potentially astronomical environmental cleanup costs and penalties that can escalate at a rate of nearly $1 million per month. The result is that the statute's purported delay of review actually completely precludes review for smaller businesses but not for large corporations.

For this reason, the strongest argument that can be made concerning the constitutionality of the EPA's enforcement of CERCLA arises when environmental liabilities are imposed on small businesses. Ultimately, this context provides the clearest evidence that certain provisions of CERCLA have been enforced in a way that has violated the due process rights of certain potentially responsible parties (PRPs).

EPA Should Revise Outdated or Inconsistent EPA-State Clean Water Act Memoranda of Agreement
What We Found
NPDES MOAs between EPA and States do not ensure Agency management control and effective oversight over a national program administered by States that is capable of providing equal protection to all Americans. EPA Headquarters does not hold EPA regional or State offices accountable for updating their MOAs when necessary and relies on other planning and management mechanisms to exercise control over State programs. However, MOAs are critical because they are the common denominator for State-authorized programs and should represent a common baseline. Outdated MOAs or MOAs that are not adhered to reduce EPA’s ability to maintain a uniform program across States that meets the goals of CWA sections 101 and 402. An effective national program must maintain consistent management control and oversight of State programs.
What We Recommend
We recommend that EPA ensure that all NPDES MOAs contain essential elements for a nationally consistent enforcement program, including CWA, Code of Federal Regulations, and State Review Framework criteria. We recommend that EPA develop and provide a national template and/or guidance for a model MOA; direct EPA regions to revise outdated or inconsistent MOAs to meet the national template and standards; and establish a process for periodic review and revision of MOAs, including when the CWA or Code of Federal Regulations are revised or when State programs change. Finally, we recommend that EPA establish a national, public clearinghouse of all current MOAs so that EPA, States, and the public have access to these documents.
EPA generally agreed with our recommendations, saying it would coordinate assessment and revision of NPDES MOAs with implementation of the CWA Action Plan. Three recommendations are open and one recommendation is listed as undecided. In its final response to this report, EPA should provide estimated or actual completion dates for all recommendations.

"the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several states a residuary and inviolable sovereignty over all other objects." Madison wrote this before adoption of the 10th Amendment, which restates, "the powers not delegated to the United States by the Constitution ... are reserved to the states respectively, or to the people." This restriction of powers was intended to be the single greatest bulwark of American liberty.

Debate on Interior/EPA Spending Bill Indefinitely Postponed

Senator Dianne Feinstein (D-CA) — who “oversees the Appropriations panel's subcommittee overseeing Interior Department and Environmental Protection Agency spending — said debate on the appropriations bill in the committee is indefinitely postponed, in part over concerns about efforts to delay EPA climate regulations,” The Hill reports.

“It's off the calendar,” Feinstein told reporters Thursday. “A decision will have to be made about whether it goes back on or out.”

INSTITUTIONAL CONTROLS

Institutional controls are non-engineered instruments, such as administrative and legal controls, that help minimize the potential for human exposure to contamination and/or protect the integrity of the remedy. Although it is EPA's expectation that treatment or engineering controls will be used to address principal threat wastes and that groundwater will be returned to its beneficial use whenever practicable, ICs play an important role in site remedies because they reduce exposure to contamination by limiting land or resource use and guide human behavior at a site. For instance, zoning restrictions prevent site land uses, like residential uses, that are not consistent with the level of cleanup.

No further evidence required to facially apparent facts

A District Court in California declined to remand the action to state court holding that the defendant is not bound to submit “summary-judgment-type evidence” as long as the jurisdictional amount was either “facially apparent” from the complaint or was shown to be “more likely than not” by the facts alleged in the removal petition.

EJ Collaborative Problem-Solving Cooperative Agreements Program

Grants & Programs Topics

Overview

The EJ CPS program requires selected applicants, or recipients, to use the Environmental Justice Collaborative Problem-Solving Model (EJ CPS Model) as part of their projects. The EJ CPS Model's purpose is to provide communities with information to help them develop proactive, strategic, and visionary approaches to address environmental justice issues, and to achieve community health and sustainability. Information on the EJ CPS Model can be found in the publication EPA's Environmental Justice Collaborative Problem-Solving Model PDF (44 pp, 1.5MB) . EPA's Office of Environmental Justice (OEJ) launched the Environmental Justice Collaborative Problem-Solving Cooperative Agreement (EJ CPS) program in 2003

Recent Awards

On June 5, 2007, EPA announced $1 million in grants across the country for improving the environment in low-income communities. These grants were awarded on May 15, 2007.

State Environmental Justice Cooperative Agreements (SEJCA)

Grants & Programs Topics

Overview

In 2009, EPA selected five state projects to receive funding up to $160,000 each, totaling $800,000.

Alaska The Alaska Department of Environmental Conservation Tribal Participation Protocol Development Project is working with Alaska Native tribal organizations to establish an early notification protocol for the Alaska Pollution Disposal and Elimination System permitting program. The objective of this protocol is to increase community involvement in the permitting process. The project will provide the training and tools for implementing the protocol. The best practices resulting from this project will be applied in other Alaska Department of Environmental Conservation programs and potentially to other State permitting programs.

California The California Department of Toxic Substances Control (DTSC) is working with community representatives, and local, state, and federal regulatory agencies to coordinate multiple environmental pollution mitigation activities. The project will identify inspection and enforcement activities, targeting specific pollution sources, and develop effective strategies for reducing or eliminating these sources in the affected communities. DTSC will also create education programs for community residents and develop compliance assistance programs for small businesses located in selected communities. The initiative will also be exploring options for creating education and job opportunities for community members living in selected communities.

Illinois The East St. Louis Residential Lead Paint Outreach Collaborative will provide community outreach and training to educate and involve residents in lead abatement and paint contamination throughout the City of East St. Louis. The project includes conducting research on the health effects of exposure to residential lead contamination. The outreach plan and public education program will also focus on the hazards of lead contamination, prevention measures, lead blood screening and abatement services. The overall mission of the collaborative is to prevent and eliminate childhood lead poisoning.

Pennsylvania The Pennsylvania Department of Environmental Protection, the Chester Environmental Partnership, and the Crozer-Keystone Health System have come together in a partnership to address the issues of asthma triggers, solid waste disposal, and children's environmental health. This project will combine in-home remediation and education with community-based efforts to reduce exposure to air pollution and solid waste. The program will be implemented in three phases:

In-home assessments and baseline evaluations

Asthma education and remediation through peer educators/counselors

Remediation of improperly disposed of solid waste in the community.

South Carolina The South Carolina Department of Health and Environmental Control (DHEC) is implementing a pilot project program utilizing collaborative problem-solving. The goal of the pilot project is to build capacity while leveraging federal and state resources, to address the environmental and social justice concerns within the selected communities. DHEC will offer technical assistance to communities as they conduct environmental assessments and address environmental issues identified in the community. Each pilot project will meet specific criteria. There will be opportunities to participate in leadership development training designed to create organizational capacity, assist in developing strategies, and build partnerships.

Environmental Justice Showcase Communities

Grants & Programs Topics

The U.S. Environmental Protection Agency has committed $1,000,000 to address environmental justice challenges in ten communities across the nation. The Agency is providing $100,000 per project over the next two years to help alleviate the environmental and human health challenges facing many American communities.

The Environmental Justice Showcase Communities effort brings together governmental and non-governmental organizations and pools their collective resources and expertise on the best ways to achieve real results in communities.

Each Region throughout the country has communities with Environmental Justice concerns including:

multiple, disproportionate environmental health burdens

population vulnerability

limits to effective participation in decisions with environmental and health consequences

opportunities for multiple federal, state and local agency collaboration, with a focus on green development

Therefore, EPA will work to improve collaboration in the delivery of services to support communities with environmental justice issues.

The successes and lessons learned in these demonstration projects will be used to help guide the design and implementation of future Environmental Justice projects and will help EPA increase its ability to address local environmental challenges in more effective, efficient, and sustainable ways.

List of Showcase Communities

Bridgeport , Connecticut - EPA Region 1 is building on work that has already taken place to develop community capacity and engagement, identify a broad network of partnerships, and connect with the goals of the city government. Using this past work as a foundation, the Region plans to work collaboratively with a wide-range of stakeholders to develop projects focused on improving indoor air quality, increasing community capacity for green jobs, increasing recycling rates, and reducing asthma and toxic exposure.

Staten Island , New York - EPA Region 2 is working with the North Shore of Staten Island, a former industrial community that contains abandoned, contaminated, and regulated properties along the waterfront, because the neighborhood has seen an increase in the number of kids with elevated lead levels in their blood. EPA, in consultation with key community members, state and local health agencies, is developing a community-based health strategy for the area.

Washington , D.C. - EPA Region 3 is building on its Environmental Justice work with a variety of partners, such as: the District Department of Environment; the District Department of Health; and, local recipients of Environmental Justice Collaborative Problem Solving and Environmental Justice Small Grant awards.

Jacksonville , Florida - EPA Region 4 is working with the City of Jacksonville and numerous local stakeholders to improve environmental and public health outcomes in an area that consists of a predominantly low income and minority population. This area has a number of Superfund sites, Brownfields , vacant and abandoned lots or other properties where contamination is suspected and impacted waterways. Region 4 is working with its partners, including environmental justice community representatives, to address sites of concern and turn them into an opportunity for residents in the vicinity to collaborate with developers and revitalize their neighborhoods.

Milwaukee , Wisconsin - EPA Region 5 is working to further the redevelopment of the 30th Street Industrial Corridor. The corridor, a former rail line in the north-central part of the city, is home to low income, communities of color. This project seeks to improve the human, environmental and economic health of these neighborhoods by redeveloping Brownfields along the corridor, implementing environmentally preferable stormwater management practices, and developing urban agriculture.

Port Arthur, Texas - EPA Region 6 is developing and implementing a comprehensive, cross-media project in this diverse city. More than 50 percent of its residents are African American and Hispanic. The city has many facilities including chemical plants, refineries and a hazardous waste incinerator. This project is being developed, with the support of other government agencies, in response to community-based organizations who have called upon EPA to look at the cumulative effects of multiple environmental impacts in Port Arthur.

Kansas City, Missouri and Kansas City, Kansas - EPA Region 7 has identified 11 neighborhoods in the metropolitan area that have many risk factors including poor housing conditions and increased exposure to environmental hazards. EPA is conducting an assessment to identify specific sources of pollution and will work with neighborhood leaders to prioritize community concerns. Strategies to address these concerns will be developed through these partnerships.

Salt Lake City, Utah - EPA Region 8 is working with six neighborhoods in central and west Salt Lake City, as the focus of a Children's Environmental Health and Environmental Justice initiative. These neighborhoods include: Glendale, Jordan Meadows, Poplar Grove, Rose Park, State Fairpark and Westpointe. The neighborhoods were selected based on the presence of several environmental risk factors, as well as the community's support and past participation in addressing environmental issues. EPA is working closely with the community and other federal, state and local agencies to identify children's exposure to contaminants from multiple pathways and will develop and apply tools to address those issues. The State of Utah has developed a tracking system that will provide baseline health and environmental data and help the partnership achieve results.

Port of Los Angeles and Port of Long Beach, California - U.S. EPA Region 9 and the California Environmental Protection Agency's (CalEPA) Department of Toxic Substances Control (DTSC) are working together to coordinate inspection and enforcement activities in the densely populated communities along the Interstate 710 cargo truck corridor between the Ports of Los Angeles and Long Beach and northward to East Los Angeles.

This effort will build upon the existing targeted inspection and enforcement efforts of Cal EPA's DTSC. This collaborative approach will solicit input from the communities on environmental problems and concerns and work with federal, state, and local agencies to focus inspection and compliance efforts on the most heavily affected, highest-priority areas.

Yakima, Washington - EPA Region 10 is addressing multiple environmental home health stressors in the Latino and tribal communities in the Yakima Valley. A coordinated effort between state, local, and non-profit partners is being used to address the range of exposures found in the community, with a primary focus on reducing exposure through contaminated private well drinking water. This is being accomplished by assessing homes with contaminated wells, providing ‘treatment at the tap' mitigation, and reducing pollution sources through available regulatory tools and best management practices.

Envrionmental Justice Small Grants Program

Grants & Programs Topics

Overview

Fiscal Year 2009 marked the 15th anniversary of EPA's Environmental Justice Small Grants Program (EJSG). Since its inception in 1994, the Program has awarded more than $20 million in funding to 1,130 community-based organizations, and local and tribal organizations working with communities who are facing environmental justice issues.

The Environmental Justice Small Grants Program (EJSG), supports and empowers communities working on solutions to local environmental and public health issues. The Program assists recipients in building collaborative partnerships to help them understand and address environmental and public health issues in their communities. Successful collaborative partnerships involve not only well-designed strategic plans to build, maintain and sustain the partnerships, but also to work towards addressing the local environmental and public health issues.

Emerging Tools for Local Problem Solving

EPA’s Role in Environmental Justice
On February 11, l994, the President issued Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” which identified three goals:
•
To focus federal agency action on the environment and human health conditions in minority and low-income communities.
•
To promote nondiscrimination in federal programs that substantially affect human health and the environment.
•
To provide minority and low-income communities greater access to information on, and opportunities for public participation in, matters relating to human health and the environment.
The President encouraged federal agencies to reinvent the way the nation approaches environmental justice so that our day-to-day efforts would be more effective in protecting the public health and environment. EPA has a leadership role in helping federal agencies implement this executive order.

About the Small Grants Program
EPA recognized that community involvement was critical to environmental decision-making and made a commitment to invest resources in projects that would financially benefit affected communities. In fiscal year 1994, the Office of Environmental Justice established the Small Grants Program to provide financial assistance to eligible community groups (e.g., community-based grassroots organizations, churches, other nonprofit organizations, tribal governments) to address local environmental problems.
Each year, approximately $1 million are made available for the Environmental Justice Small Grants Program. These funds are divided equally among the 10 EPA regions, where the actual grants are awarded and managed. Awards range from $10,000 to $25,000 each. The amount awarded in a given year can vary depending on the availability of funds.
Grant proposals submitted for the Environmental Justice Small Grants Program are evaluated within the EPA region where the project is located through competitive review and evaluation. Award decisions are made based on established criteria, which include geographic balance, diversity of project recipients, and sustainability of benefits of projects after the grant is completed. The review criteria also require the applicant to demonstrate strong community involvement.

Goals
• Meaningfully involve and engage the community in planning the redevelopment and reopening.
• Build partnerships among community stakeholders through which environmental and other community issues concerning the former landfill site can be addressed.
• Ultimately, convert back into a useful community asset.

•
Enhance the community’s understanding of environmental and public health information systems.
• Generate information about pollution in the community.
• Build community capacity for identifying local environmental justice problems.
• Involve the community in designing and implementing activities to address these concerns.

• Educate and train residents and youth to implement energy efficiency improvements in their neighborhoods.

• Facilitate information exchange among those who are affected by poisoning.
• Allow for the formation of an important partnership with Gardeners.
• Build community capacity to address environmental justice concerns by enabling community members to implement solutions to correct a local problem.

• Train a core of neighborhood outreach leaders who live near the incinerator in the science and law of medical incineration, environmental networking, and grassroots organizing.
• Through these leaders, create a partnership between the community and the industry.

• Clean up trash, refuse, and other impacts to water quality in the Watershed.
• Identify wildlife and plants that grow in the Watershed.
• Identify riparian areas and possibly map these areas in the Watershed.
• Grow and develop relationships with tribal members and tribal entities.

• Learn more precisely the health and quality of life issues raised by living near freeways.
• Learn about air quality and mechanisms to protect the community from airborne toxins.
• Quantify, translate, and present the knowledge gained to the public in order to promote increased participation in environmental decision-making.

• Develop a simple resource brochure that covers the basics of the effects of the indoor environment on respiratory health, written for low-literacy understanding and produced in English and Spanish.
• Host a meeting for community leaders to learn about the environmental justice issues surrounding asthma and other respiratory illness.
• Disseminate information packages to all day care centers and elementary schools in the target neighborhood. Send packets to 80 pediatricians and respiratory specialists who might treat patients in the target area.

• Educate communities about the issues of sewage lagoons and the impacts these lagoons might have on the environment and human health.
• Participate in a health fair to further disseminate information to the public about clean water and solid waste disposal.
• Work with the Community Environmental Health Assessment Team to educate the affected counties and to demonstrate the benefits of using alternative solutions to sewage lagoons.

• Detect, assess, and evaluate the effects on and risks to human health related to hazardous substances.
•
Survey, research, collect, and analyze data, which will be used to expand scientific knowledge and the community’s understanding of the effects of exposure to asbestos.
• Acquire contact information for as many of the identified individuals as possible to establish baseline.

• Detect, assess, and evaluate the effects on and risks to human health from hazardous substances.
•
Ensure that the research relates to “hazardous substances,” as defined by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 101(14).
• Research, collect, and analyze data, which will be used to expand the scientific knowledge and understanding of hazardous substances being transported.
•
Expand the communities’ scientific knowledge and understanding of hazardous substance issuese.
• Train youth in approved research techniques.
• Publish a report documenting research results and outlining appropriate measures the community

• Train project participants to make presentations and assist them in facilitating the delivery of workshops and demonstrations that illustrate methods and resources related to healthy air, water, and soil.
• Perform hands-on environmental restoration work.
• Disseminate relevant information at all project events and make pertinent information available at project sites in English, Spanish, and Tongan.

• Use research to analyze and understand how air quality affects local low-income and minority communities.

• Inform rural residents about the health hazards associated with the improper management and/or storage of waste materials on their properties.
• Use outreach and education to facilitate the collection and recycling of waste products.
• Reduce the negative health impacts associated with incinerating and stockpiling waste on rural properties.

• Estimate particulate matter (PM) emission levels from heavy-duty mobile sources in the area.
• Monitor the concentrations of PM from those sources present in indoor air to better understand the levels of pollution to which residents are exposed.
• Help residents and environmental community workers to better organize and advocate for environmental justice rights, to identify sources of diesel pollution, and to bring together residents and business to improve environmental conditions.

• Produce a report that reveals new information about hazardous air pollutant emissions.

• In the same report, evaluate the risks exposure to hazardous air pollutants pose to the respiratory health

• Increase community awareness about contaminated sites and sources of industrial air pollution.
• Educate the general public and policymakers about disproportionate environmental health risks.
•
Increase community involvement in the Community Coalition for Environmental Justice’s (CCEJ’s) outreach, education, and advocacy efforts on environmental justice issues.

• Transfer oversight responsibilities from government agencies to community leaders within the community.
• Foster the framework and relationships necessary to address environmental justice issues through community outreach and the recruitment of stakeholders within the community.
• Expand the scope of environmental education.
• Assist in integrating volunteers into the Program.
• Conduct outreach presentations to low-income youth and families.

• Increase community understanding about environmental issues related to clean air and recycling.
• Conduct a comprehensive outreach campaign via public radio.
• Encourage public participation in protecting the environment.
• Provide printed information in Spanish.

• Create a process by which youth and their parents will become better educated and more involved with the environmental, programs and projects.
• Increase the capacity of youth and their parents to recognize and participate in finding solutions to the community problems of litter, dumping in the sea and on land, and improper disposal of household hazardous waste.

In April 2009, the OIG identified 10 key management challenges for Fiscal Year 2009. Three of those challenges impact EPA’s management and enforcement capability:
1 EPA’s organization and infrastructure;
2 Oversight of delegations to States; and
3 Performance measurement.

we believe that the underlying issues persist.

EPA’s Organization and Infrastructure
In July 1970, the first EPA Administrator formally organized EPA based upon existing environmental legislation that encompassed discrete media programs for water, air, pesticides, radiation, and solid waste, as well as 10 regional offices and a laboratory structure inherited from other federal agencies. However, President Nixon’s Advisory Council on Executive Organization, also known as the Ash Council, recommended organizing EPA according to functional categories (e.g., monitoring, research, standard-setting, enforcement, assistance) rather than along media lines (e.g., air, water, land). This recommended organizational approach was intended to recognize the interrelated nature of pollution problems, acknowledge that pollutants cut across media lines, encourage balanced budget and priority decisions between component functions, and permit more effective evaluations of total program performance.
However, the realities of environmental legislation made this type of integration difficult and would require an incremental, three-phased approach. The first phase of EPA organization was dominated by its discrete medium orientation. The second phase followed a hybrid functional/media structure similar to EPA’s current organization. Finally, the third phase would eliminate the media-oriented program offices in favor of the functional units recommended by the Ash Council. This was never realized. Studies we reviewed indicate that EPA’s failure to move to this third phase may hinder EPA’s ability to effectively enforce and oversee environmental laws.
OIG work has also shown that EPA’s organization has impeded achievement of environmental goals and efficient use of resources. Recurring themes include: inadequate coordination between EPA headquarters offices; inconsistencies in enforcement among EPA’s Regions; inadequate national (Agency) guidance, procedures, or priorities on programs; a lack of strategic plans that link program missions, goals, and performance measures; and decentralized management contributing to allocation and resource management problems. For example:
In a review of EPA’s Drinking Water Program, it was unclear whether the Office of Enforcement and Compliance Assurance (OECA) was adequately coordinating its efforts with the Office of Ground Water and Drinking Water (OGWDW). OECA reported that it has “substantive, regular, and consistent” coordination with OGWDW on both rule development and enforcement, while other sources indicated that OECA’s enforcement priorities may be out of alignment with those of OGWDW.
In a review that assessed EPA’s oversight and assistance of tribal community water systems, we found that the five Regions we reviewed varied in the quality of oversight they provided to tribal community water systems. One Region failed to monitor for certain contaminants, chose not to enter known monitoring violations into the Safe Drinking Water Information System, and did not conduct enforcement actions against the systems that committed these violations.
 EPA relies heavily on guidance to communicate Agency policy and regulations. OIG work has shown a culture in EPA that treats guidance as non-binding to parties, including EPA Regions, and accepting of guidance that is incomplete, draft, or interim. This could lead to inconsistent implementation and impede EPA’s ability to effectively enforce necessary actions since private parties may perceive unfairness and the absence of boundaries on their activities.
 In a review of the Border 2012 Program, a joint U.S.-Mexico effort to improve the environment and protect the health of people living along the border, we found that success varied across the different media areas as well as by leadership despite a program structure aimed at reducing stove-piping. Program implementation varied depending on the Region. There was no systematic roadmap that defined the relationships between resources, activities, and intended outcomes; nor were there management controls to ensure that results were documented or that goals were being achieved.
 An OIG review found that EPA’s decentralized management of the Superfund program contributes to allocation and resource management problems. EPA spreads its Superfund appropriation across a variety of offices and Regions. This has limited EPA’s opportunities to effectively manage Superfund resources for cleanup.
Oversight of Delegations to the States
EPA’s mission is to protect human health and the environment. To accomplish its mission, EPA develops regulations and establishes programs that implement environmental laws. These programs may be delegated to State, local, and tribal agencies that request to take primacy of the program. Delegation, however, does not relieve EPA of its statutory and trust responsibilities for protecting human health and the environment. EPA performs oversight of State, local, and tribal programs in an effort to provide reasonable assurance that delegated programs are achieving their goals. EPA does not have the resources to effectively administer all its responsibilities directly. EPA relies heavily on local, State, and tribal agencies for compliance and enforcement and to obtain performance data. In its FY 2007 Performance and Accountability Report, EPA states it delegated the responsibility for issuing permits and for monitoring and enforcing compliance to the States and tribes.
A critical management challenge to EPA is oversight of its delegations to States. Federal environmental statutes grant EPA a significant role in implementing the intent of the law, and also authorize a substantial role for States. However, quality data is often lacking to ensure that the intent of the law is met. Also, Federal requirements establish consistency for businesses and within industries nationwide. States’ discretion adds flexibility to address specific circumstances and local issues. However, joint implementation and enforcement leads to special challenges in interpretations, strategies, and priorities.
Our evaluations have shown that EPA’s oversight of State programs requires
improvement for several reasons. These include inconsistent enforcement guidance
interpretation; States and Regions not meeting minimum reporting requirements;
differing standards for State delegation agreements among the Regions; disagreements on
enforcement priorities between OECA and the Regions; inaccurate data systems; and
internal control deficiencies. For example:
 We found that EPA did not provide effective enforcement oversight of major facilities with National Pollutant Discharge Elimination System (NPDES) permits in long-term significant noncompliance. EPA inconsistently applied guidance defining timely formal enforcement actions. Also, EPA guidance did not provide meaningful direction on what constitutes “appropriate” actions. Timely and appropriate formal enforcement actions are important to minimize additional pollutants from being discharged into the nation’s waters to ensure protection of human health and the environment. We estimated that up to 51 million pounds of excess pollutant loads were discharged during our review period by 44 facilities reviewed, representing loads that could have been minimized.
 EPA and States did not maintain complete and accurate records of NPDES compliance and enforcement activities. Many Region and State files were incomplete, and data in EPA’s information systems were incomplete and inaccurate. Further, Regions and States did not report inspection-related violations in EPA’s Permit Compliance System. An accurate history of the compliance and enforcement activities at a facility is important for oversight and making future enforcement decisions. The lack of accurate information inhibits EPA’s ability to provide effective oversight to NPDES major facilities and thus protect human health and the environment from excess levels of toxic or harmful pollutants.
 We found Regions and States did not always oversee industrial users discharging into wastewater treatment plants without approved programs. EPA was working on developing guidance for overseeing categorical and significant industrial users discharging to plants without approved programs, but had put it off due to other priorities.
 In a review of EPA’s oversight and assistance of tribal community water systems, we found internal control deficiencies existed in administering EPA’s oversight in some of the Regions we reviewed. To varying degrees, tribal drinking water records were incomplete due to a failure to maintain oversight of system operations and/or poor records management. Internal controls are an important safeguard for ensuring that systems operate as intended. Deficiencies in these controls may indicate that the systems are vulnerable to failure, resulting in increased risk to public health.
Conclusion
Mr. Chairman, EPA’s ability to effectively manage, oversee, and enforce the environmental laws under its jurisdiction, including the Clean Water Act, has been impeded by several factors including its current organizational structure, how it oversees State delegated authorities, and limitations in performance measurements. On the 37th anniversary of the Clean Water Act, we believe that a recommitment to the protection of the nation’s waters can be achieved by an EPA that is strategically aligned to uniformly enforce environmental statutes and provide consistent oversight of its Regions and State delegations. This will require a comprehensive review of EPA’s current organization and a commitment to implement best practices.

Obama administration cabinet members show commitment to healthy environment and strong economy for all Americans

WASHINGTON – Today, for the first time in more than a decade, U.S. Environmental Protection Agency Administrator Lisa P. Jackson and White House Council on Environmental Quality Chair, Nancy Sutley, reconvened the Interagency Working Group on Environmental Justice (EJ IWG) in a meeting held at the White House. The meeting, attended by five cabinet members, demonstrates the Obama administration's dedication to ensuring all Americans have strong federal protection from environmental and health hazards. Pollution like dirty air and contaminated water can have significant economic impacts on overburdened and low-income communities, driving away investment in new development and new jobs and exposing residents to potentially costly health threats. This historic gathering marks a recommitment to advancing the mandate of Executive Order 12898, “ Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations , ” which states that each agency, with the law as its guide, should make environmental justice part of its mission.

The role of the EJ IWG is to guide, support and enhance federal environmental justice and community-based activities. By coordinating the expertise and resources of federal government agencies, the EJ IWG will work to identify projects where federal collaboration can support the development of healthy and sustainable communities. The EJ IWG will also seek opportunities to provide green jobs training in communities in need and promote a clean energy economy.

Attendees at the meeting included Attorney General Eric Holder, Department of Justice; Secretary Ken Salazar, Department of Interior; Secretary Shaun Donovan, Department of Housing and Urban Development; Secretary Ray LaHood, Department of Transportation; Administrator Martha Johnson, General Services Administration; Carol Browner, senior advisor to the president on energy and climate change; John Holdren, director of the White House Office of Science and Technology Policy; Melody Barnes, director of the White House Office of Domestic Policy; and representatives from the following federal agencies: Labor, Health and Human Services, Energy, Education, Homeland Security, Commerce, Army, Agriculture and Defense, among others.

“Environmental challenges in low-income and minority communities are barriers to opportunity. Dirty air, polluted water and contaminated lands degrade health and the environment while discouraging investments and economic growth,” said EPA Administrator Lisa P. Jackson. “We believe that the burdens these communities face are best approached with collaborative efforts, built on the strengths brought by a team of different federal agencies. Revitalizing this workgroup creates an important chance to work together on environmental justice issues that have held back the prosperity of overburdened communities for far too long.”

“This country was built on the promise of equal opportunity for all of us, yet low-income families and minority communities shoulder a disproportionate amount of pollution and environmental degradation. We cannot and will not ignore these disparities,” said Nancy Sutley, chair of the White House Council on Environmental Quality. ”As the chair of the Council on Environmental Quality, I am committed to ensuring that environmental justice isn't just an afterthought - it's an integral part of our mission.”

“In too many areas of our country, the burden of environmental degradation falls disproportionately on low-income and minority communities – and most often, on the children who live in those communities,” Attorney General Eric Holder said. “Our environmental laws and protections must extend to all people, regardless of race, ethnicity, or socioeconomic status which is why the Department of Justice is committed to addressing environmental justice concerns through aggressive enforcement of federal environmental laws in every community.”

“At the Department of Transportation, one of our top priorities has been promoting livable communities in collaboration with HUD and EPA,” said U.S. Transportation Secretary Ray LaHood. “Through coordinated investments that improve access to affordable and sustainable housing and transportation opportunities, together we can improve the quality of life for communities across America .”

“As stewards of our natural resources and history, the Department of Interior has a special obligation to protect and promote our nation's resources for all communities and all persons,” said Secretary of the Interior Ken Salazar. “Every American deserves a healthy environment in which they can live, learn and play.”

“HUD joins with our colleagues in the Obama administration to make an unprecedented commitment to combating environmental justice discrimination that all too often affect disadvantaged communities,” said HUD Secretary Shaun Donovan. “At HUD we are committed to providing equal access to housing, mitigating risks to communities in disaster-prone areas, ensuring homes are free of health hazards, and working to create sustainable and inclusive communities across America so that a family's success is not determined by the zip code they live in.”

During the meeting, some immediate next steps for the EJ IWG group were identified; these include:

· Plan EJ 2014 —A four-year roadmap to help EPA develop stronger community relationships and increase the agency's efforts to improve environmental and health conditions in overburdened communities. The plan includes three main sections: Cross-cutting Agency Strategies, Tools Development, and Program Initiatives.

· EJ in Rulemaking Guidance —The “Interim Guidance on Considering Environmental Justice During the Development of an Action” is a step-by-step guide that helps EPA staff consider environmental justice at key points in the rulemaking process.

The principles of environmental justice uphold the idea that all communities overburdened by pollution – particularly minority, low income and indigenous communities – deserve the same degree of protection from environmental and health hazards, equal access to the decision-making process and a healthy environment in which to live, learn, and work. EPA serves as the lead for environmental justice issues in the federal government.

More information on the Interagency Working Group on Environmental Justice:

The purpose of this cooperative agreement is to conduct a shared resource project that will lead to REMINERALIZATION OF DEPLETED CROP LANDS .

This cooperative agreement will advance the technology developments and research which have been performed on IRON MOUNTAIN MINE . The specific objective is to OPTIMIZE AVAILABILITY OF MINERALS IN SOIL FOR CROPS .

This work will culminate in BETTER AND SAFER FOOD . Sec. 1274.903

Responsibilities (XXX 1995). (a) This cooperative agreement will include substantial [ EPA, DOJ, NOAA, NASA, DOE, DOI, FEMA, FWS, CALIFORNIA] _____________participation during performance of the effort. _______ and the Recipient agree to the following Responsibilities, a statement of cooperative interactions to occur during the performance of this effort . ??? and the Recipient shall exert all reasonable efforts to fulfill the responsibilities stated below. (b) ??? Responsibilities. Since ??? contractors may obtain certain intellectual property rights arising from work for ??? in support of this agreement, ??? will inform Recipient whenever ??? intends to use ??? contractors to perform technical engineering services in support of this agreement. The following responsibilities are hereby set forth with anticipated start and ending dates, as appropriate: ------------------------------------------------------------------------ Responsibility Start End ------------------------------------------------------------------------ ------------------------------------------------------------------------ (c) Recipient Responsibilities. The Recipient shall be responsible for particular aspects of project performance as set forth in the technical proposal dated ____________, attached hereto (or Statement of Work dated ____________, attached hereto.) The following responsibilities are hereby set forth with anticipated start and ending dates, as appropriate: ------------------------------------------------------------------------ Responsibility Start End ------------------------------------------------------------------------ ------------------------------------------------------------------------ Sec. 1274.904 Resource Sharing Requirements (XXX 1995). (a) NASA and the Recipient will share in providing the resources necessary to perform the agreement. ??? funding and non-cash contributions (personnel, equipment, facilities, etc.) and the dollar value of the Recipient's cash and/or in-kind contribution will be on a ________ ( ??? ) - ________ (Recipient) basis.

Finds Major Economic Weaknesses, Stigma, and Moral Hazard Remain

WASHINGTON, D.C. - The Congressional Oversight Panel today released its September oversight report, "Assessing the TARP on the Eve of Its Expiration." The Panel found that, although the Troubled Asset Relief Program (TARP) provided critical support to the financial markets at a time when market confidence was in freefall, the program has been far less effective in meeting its other statutory goals, such as supporting home values, retirement savings, and economic growth.

Under its original authorization, the TARP would have expired at the end of 2009. Late last year, however, the Secretary of the Treasury exercised his legal authority to extend the program until October 3, 2010, the latest date authorized by statute. This month, in anticipation of the final expiration of the TARP's most significant authorities, the Panel explored the program's overall effectiveness. The Panel found that:

Although the TARP quelled the financial panic in the fall of 2008, severe economic weaknesses remain even today. Since the TARP was authorized in October of 2008, 7.1 million homeowners have received foreclosure notices. Since their pre-crisis peaks, home values have dropped 28 percent, and stock indices -- which indicate the health of many Americans' most significant investments for college and retirement -- have fallen 30 percent. Given that Treasury was mandated by law to use the TARP to address these measures of the economy, their lingering weakness is cause for concern.

The TARP's extension served primarily to extend the implicit guarantee of the financial system. When the Secretary extended the TARP, he stated that any new use of funds would be limited to providing mortgage foreclosure relief, extending capital to small and community banks, and supporting the securitization market. He also noted that extending the TARP would preserve his authority to intervene swiftly in the event of another financial crash -- essentially prolonging the government's "implicit guarantee" of the financial system. In practice, this second justification proved by far the more significant, as Treasury did not add any additional funding to any programs intended to address the specific economic weaknesses identified by the Secretary.

The TARP's "stigma" has grown and may prove an obstacle to future financial stability efforts. Treasury's policy choices have been increasingly constrained by public anger about the TARP. For example, the TARP is today so widely unpopular -- due in part to shortcomings in Treasury's transparency and its implementation of TARP programs -- that some banks refused to participate in the Capital Purchase Program for fear of losing customers. The unpopularity of the TARP may mean that the government will not authorize similar policy responses in the future. Thus, the TARP's greatest consequence may be that the government has lost some of its ability to respond to financial crises.

Economists surveyed by the Panel raised severe concerns about moral hazard. The Panel sought the input of four prominent economists on the effectiveness of the TARP. These experts generally agreed both that the TARP was necessary to stabilize the financial system and that it had been mismanaged and could pose significant costs far into the future. Further, the economists unanimously felt that the program created significant moral hazard. TARP offered its funding on relatively generous terms, without requiring participating institutions to enter liquidation or receivership, remove failed managers, or wipe out existing shareholders. The fact that the government chose not to impose such stringent costs meant that the TARP's moral hazard costs were much greater than necessary.

The full report is available at http://cop.senate.gov/. The Congressional Oversight Panel will continue to issue monthly reports evaluating the TARP until the Panel's statutory authority expires on April 3, 2011.

The Congressional Oversight Panel was created to oversee the expenditure of the Troubled Asset Relief Program (TARP) funds authorized by Congress in the Emergency Economic Stabilization Act of 2008 (EESA) and to provide recommendations on regulatory reform. The Panel members are: J. Mark McWatters; Richard H. Neiman, Superintendent of Banks for the State of New York; Damon Silvers, Policy Director and Special Counsel for the AFL-CIO; Kenneth Troske, William B. Sturgill Professor of Economics at the University of Kentucky; and Elizabeth Warren, Leo Gottlieb Professor of Law at Harvard Law School.

WASHINGTON (Reuters) - The top bailout cop said evidence of fraud among banks that sought taxpayer funds was on the rise, and some of his investigations involve amounts exceeding $550 million.

Neil Barofsky, the special inspector general for the Troubled Asset Relief Program, told the Reuters Washington Summit on Tuesday that his office has 120 open investigations of banks that "reflect the full array of banks that applied for and received TARP funding."

These cases are likely to lead to criminal charges for more bank executives and founders, Barofsky said.

"I just see those numbers going up," he added.

Investigations by the SIGTARP, as his operation is known, so far have led to charges against eight bank executives, including Lee Farkas, former head of bankrupt mortgage lender Taylor, Bean and Whitaker.

Farkas is facing federal charges related to his participation in a scheme to fraudulently obtain $553 million in TARP funds for Montgomery, Alabama-based Colonial Bancshares. The investigation prevented the funds from being disbursed, and Colonial subsequently failed.

Barofsky said that some cases could top the Colonial case in terms of the dollar amount of attempted or actual theft from taxpayers. "We have investigations in, above, and below that range," he added.

The SIGTARP operation is expanding its staff and has opened branch offices in New York, Atlanta, Los Angeles and San Francisco to pursue these investigations, even as the $700 billion bailout program is set to cease new investments on October 3.

Barofsky, who rides around Washington in a black "plainclothes" Chevrolet Impala equipped with a siren and emergency lights, said SIGTARP will hit its peak staff and activity in the next two years, roughly trailing TARP's peak activity by about a year.

The operation will stay in business until the last dollar of bailout investments is repaid or written off, and because some programs could last 10 years, SIGTARP may have another eight to run. But Barofsky said it would likely scale back within a few years as investments are exited.

Barofsky also said he will audit the General Motors Co GM.UL initial public offering soon after it is completed, with the aim of correcting any deficiencies in the process to aid the government's exit from other investments, such as Chrysler Group, insurer American International Group ( AIG.N ) and automotive lender GMAC Financial Services.

AIG PROBE CONTINUING

Barofsky also said his staff is deep into an investigation of the New York Federal Reserve Bank's disclosures about controversial taxpayer-funded payments to AIG counterparty banks as part of the insurer's massive bailout.

Last January, the U.S. House of Representatives Committee on Oversights and Investigations, subpoenaed hundreds of thousands of pages of Fed documents involving the $62 billion in payments to Wall Street and foreign bank to liquidate credit default swap contracts written by AIG. However, the Fed did not provide the same documents to SIGTARP for a previous audit it conducted on the same bank payments.

Disclosure of the payments, often referred to as a "back door bailout" for banks, came months after they were made and fueled public anger over the $180 billion AIG rescue. Treasury Secretary Timothy Geithner, who ran the New York Fed at the time, denied any involvement in the disclosure decisions, but faced calls in Congress to resign over the controversy.

(Reuters) - A judge refused to dismiss a securities fraud lawsuit accusing American International Group Inc ( AIG.N ) of misleading investors about its exposure to subprime mortgages, which led to a liquidity crisis and $182.3 billion of federal bailouts.

Monday's ruling by U.S. District Judge Laura Taylor Swain allows the case to go forward and could pave the way for a trial over AIG's near collapse. The government rescue led taxpayers to take a nearly 80 percent stake in the New York-based insurer.

AIG spokesman Mark Herr declined to make an immediate comment.

Investors led by the State of Michigan Retirement Systems accused AIG, executives and directors of failing to disclose the risks that AIG had taken on through its portfolio of credit default swaps (CDS) and a securities lending program.

Swain wrote that the allegations in the class-action lawsuit were sufficient to suggest there was "a strong inference of fraudulent intent" in how AIG communicated publicly about the risks in the portfolio of credit default swaps.

She also said that plaintiffs made sufficient arguments to claim that AIG "materially misled the market" in hiding its "expansive" CDS underwriting, repeatedly expressing confidence in its ability to manage risk and justifying a May 2008 capital raising.

Among the defendants are Martin Sullivan, a former AIG chief executive; Joseph Cassano, who ran AIG's Financial Products unit, which managed the CDS portfolio; current and former directors; 34 banks that underwrote AIG securities, and former accountant PricewaterhouseCoopers LLP.

The lawsuit covers investors who owned AIG securities between March 16, 2006, and September 16, 2008, when AIG received its first bailout.

E. Powell Miller, a lawyer for the lead plaintiff, declined to make an immediate comment, saying he had yet to confer with his client.

Brad Karp, a lawyer for the banks, declined to make an immediate comment. James Gamble, a lawyer for the outside directors, declined to comment. Lawyers for Sullivan, Cassano and PwC did not immediately return calls seeking a comment.

Shares of AIG rose $1.67, or 4.6 percent, to $38.14 in afternoon trading on the New York Stock Exchange.

The case is In re: American International Group Inc 2008 Securities Litigation, U.S. District Court, Southern District of New York, No. 08-05072.

CERCLA
allows PRPs to seek contribution from one another in order to
apportion response costs equitably. But CERCLA bars contribution
claims against PRPs that have obtained administratively
or judicially approved settlements with the government.

CERCLA thus provides an incentive for PRPs to settle by
leaving non-settling PRPs liable for all of the response costs
not paid by the settling PRPs.
We consider a question that has split the federal courts:
May a non-settling PRP intervene in litigation to oppose a
consent decree incorporating a settlement that, if approved,
would bar contribution from the settling PRP? We join the
Eighth and Tenth Circuits in holding that the answer is “yes.”

TARP Oversight Panel: AIG Still a 'Significant Risk' to Taxpayers

September 20, 2010

American International Group Inc. still owes the federal government about $128.2 billion, and the Troubled Asset Relief Program's Congressional Oversight Panel has issued a report suggesting it's still hard to say whether that taxpayer investment will pay for itself.

"Whether Treasury will be able to exit its investments in AIG without substantial losses turns on AIG's ability to produce strong operating results and demonstrate that it is capable of functioning as a stand-alone investment-grade company without government support," the report said.

An attempt to reach AIG (NYSE: AIG) for comment on the TARP report wasn't immediately successful.

"AIG still relies largely on government funding for capital and liquidity, although there are recent indications that AIG is planning to issue bonds," the report said. "Treasury's ability to recoup its investment depends on the value of AIG's common stock at the time Treasury sells its interests. Therefore, the value of Treasury's substantial investment in AIG and the size of any gain or loss are dependent on many external variables, and the protracted investment in AIG continues to create significant risks to taxpayers."

The company's outstanding TARP help equals $49.1 billion, while its debt to the Federal Reserve Bank of New York is $79.1 billion. AIG has to repay FRBNY before it can turn to settling its debt with the Department of the Treasury.

In general, the report reflected increasing optimism in the federal agencies that AIG may recover, but it points out the company has offered no concrete time line for debt repayment.

"At this time, AIG cannot afford to divert the cash it is generating through its insurance operations towards repaying FRBNY, because it is still quite weak financially," the report said. "Both the timing of the government's exit from its involvement with AIG and the ultimate return on its investment are difficult to predict with confidence."

The panel's report also included views from academic experts. It quoted Alan Blinder, a professor of economics and public affairs at Princeton University, as saying that "regarding stabilizing institutions like AIG, one has to count TARP as a huge success." He said it threw a "security blanket around every large entity. This is not something you'd want to do under normal circumstances but was appropriate at the time. And the net cost to the taxpayers for this part of the program will, in the end, be very small. In that sense, TARP looks like a bargain."

Because Treasury will sell off the remaining warrant positions it holds in Hartford Financial Services Group Inc. and Lincoln National Corp., ending the financial connection between the two major insurers and the federal government, that leaves AIG as the only insurance company financially connected to TARP (BestWire, Sept. 9, 2010).

TARP is nearing its statutory expiration on Oct. 3.

AIG stock was trading at $36.67 on the afternoon of Sept. 20, up 2.89% from the previous close. Most AIG insurers have current Best's Financial Strength Ratings of A (Excellent).

In addition, EPA is proposing minimum quality control requirements to improve consistency across method versions; corrections to previously approved methods; and various changes to sample collection, preservation, and holding time requirements.

For complete information on these methods read the proposed rule by visiting
www.epa.gov/waterscience/methods/update/methodsprepub.pdf

Information for Applicants

Before You Apply
You should be familiar with federal grant requirements before you apply. These requirements, established in law , Executive Order, federal regulation, and the OMB Circulars, often vary depending on the type of organization applying. For example, they establish which costs may be charged to a federal grant, how open competition is required for equipment, supplies, and contracts procured under a grant, and what efforts that must be taken to contract with women- and minority-owned firms.

Applying for a Grant
If you have been asked to submit a formal application for a grant by an EPA project officer or your proposal has been formally selected for funding by EPA Region 9, please follow these guidelines. In many cases, EPA Region 9 will send you additional guidance information with a Region 9 tracking number to help you apply for your specific program/project. If you are submitting a grant proposal , however, there is a different procedure (see Requests for Proposals ).

Mandatory Grant's Management Training for Non-Profit Applicants and Recipients - EPA's new recipient course designed to help non-profit recipients and applicants understand assistance agreement regulations, the application process, management of their assistance agreements and the close out process. Completion of this class is mandatory for all non-profit award recipients upon receipt of monetary actions effective October 1, 2007. Please check your award document for the term and condition. Your certification will be good for 3 years after which you will have to update your training. ( This class is not required for Colleges or Universities. The cost principles taught are specially for non-profit enities. )

Effective October 1, 2009, EPA will require the use of the Federal Financial Report (SF-425). This form replaces the current Financial Status Report (SF-269 and SF-269A) and Federal Cash Transactions Report (SF-272). The new form may be found on the internet at: http://www.epa.gov/ocfo/finservices/forms.htm

Grant Awards Database - Contains award information on EPA open grants and includes a view of grant awards by quarter. The database can be searched by any word or combination of words appearing within the award record.

Policy and Regulations - New regulations, policies, proposed rules, important notices and the regulatory agenda of future regulations.

EPA Long-Term Grants Management Training Plan - This plan provides the framework for insuring that EPA employees have the skills to manage grants in accordance with the highest fiduciary standards and for providing recipients with the knowledge they need to expend grant dollars in a fiscally responsible manner. (32 pp, 960 K, About PDF )

A mountain of problems. The Iron Mountain mine site in Shasta County, ... These funds will be used to remediate the closed Iron Mountain mine in Redding, ...
ehp.niehs.nih.gov/members/2003/111-3/focus.html - Cached

This little cottage was built on the side of Iron Mountain as housing for an employee and his family of the Iron Mountain Mine . There were twenty-four more ...
blogs.redding.com/dsmith/archives/2009/04/ - Cached

The EPA listed Iron Mountain Mine as a federal Superfund site in 1983, ... Additional information on Iron Mountain Mine is available on the Web at ...
yosemite1.epa.gov/.../ 6d8c6077be9d48d68525697d005f3ad3!OpenDocument&Start=1&

The Iron Mountain Mine site includes mining property on the topographic ... Iron Mountain Mines , Inc. (IMMI) acquired a majority of the parcels to the mine ...
cfpub.epa.gov/superrods/index.cfm?fuseaction=data.rodinfo... - Cached

1. Although the majority confusingly states that "we join the other circuits that measure delay from when the movant was on notice that its interests may not be protected by a party already in the case," Maj. at 18 (emphasis added), the majority's application of this standard correctly measures delay from when the Nation could no longer reasonably believe its interests were adequately represented. See Maj. at 21 ("The Nation could never have reasonably thought that the state was representing the Nation's interests in recovering its damages.").

2. I express no view on whether the district court properly resolved Tyson's Rule 19 motion. Rather, I only point out that until that motion was resolved, the Nation could have reasonably believed that the district court would adopt the position of Coeur D'Alene II rather than the position of Coeur D'Alene I regarding the CERCLA trustee issue.

Shasta County , by M. E. Dittmar, Redding , California .

"The best foundation for communal prosperity is diversity of resource. A diversity of soil and climate assure a variety of agricultural, horticultural and pomological products. A diversity of industrial raw materials and forest resources invites industrial expansion. When a community embraces these, with a superabundance of water for power and irrigation, it offers a combination of advantages, rarely equalled (sic) and never excelled. These are the advantages that Shasta County at the extreme head of the Sacramento Valley possesses.

"In area Shasta is the largest geographical subdivision of the Sacramento River drainage, embracing 4,050 square miles within its borders - the States of Rhode Island and Delaware could be included in this area and leave a surplus of over 750 square miles.

"The increasing importance of irrigation as an aid to intensive agriculture, speeding up the soil, is generally recognized. As compared with dry farming and cereal crops exclusively, intensive agriculture, fruitgrowing (sic) and diversified husbandry, has increased the annual net profit from the soil many fold. In the last analysis, water on the land is as a rule more valuable than the land itself.

"According to official daily gauging records, the average annual run-off, originating within the limits of Shasta County , is 8,100,000 acre feet - a valuable irrigation and power asset.

"Over one-sixth of the potential water-power energy of California exists within the border of Shasta County . The development of cheap and convenient power means industrial development. Water, for power and for irrigation, is the 'open sesame' of Shasta's future.

"To utilize the power, Shasta has industrial raw materials to attract giants of capital and industry. The industrial metals, copper, iron and zinc, already highly developed and of the first magnitude in quantity; cement materials and great beds of fine quality clays; the elements essential for the manufacture of commercial fertilizers, on a scale to supply the greater part of the North American continent with calcium nitrates - destined to entirely supersede the sodium nitrates of Chile; hardwood timber for the manufacture of furniture, and vast forests of commercial pine and fir for the lumberman - containing over 5,250,000,000 feet (board measure) standing commercial timber.

"These resources represent the foundation for an industrial community that cannot be equalled (sic) for diversity, quantity and general advantages, within a like area anywhere in the United States .

In metal mining, Shasta has been in a class by itself, leading all other countries in California for the past eighteen years. The official statistics from 1897 - the year when her great sulphide ore bodies were first exploited - to 1914 (last year estimated) credit the county with a total output of $99,144,777, or an average of over $5,508,000 per year.

"More than two thousand men find employment at good wages, all the year round, in this great industry, and approximately $3,000,000 per annum are paid out within the borders of the county for wages and supplies.

"The great industrial metal, copper, is next to iron in importance, in the work of the world. In the past eighteen years Shasta has produced 488,211,278 pounds of this metal.

"To Shasta County is due the credit of the first important development on the Pacific Coast , in the production of iron ore, and the manufacture of pigiron by means of the electric furnace.

"The electric furnaces at Heroult have also been utilized in the manufacture of ferro-manganese, for the steel plants of the eastern portion of the United States . Here are grouped the iron ores, the elements essential in the manufacture of special steel, and a million horsepower of potential energy - the basis for the upbuilding of another Pittsburgh.

"In emphasizing the industrial present and future of Shasta County, we wish to make its importance apparent from the 'home market' viewpoint, with thousands of consumers finding remunerative and continuous occupation the producer has an advantage not frequently enjoyed, and this is particularly true where intensive cultivation is practiced, on smaller land holdings.

Deciduous fruit is grown on an extensive scale in the lower valleys and foothills. The culture of the prune is predominant, with peaches and pears a close second.

"The olive, one of the most stable orchard products, has demonstrated its superiority in Shasta County . Hundreds of contiguous acres are now planted to olive groves, and one of the largest groves in the State, containing 120 acres, planted more than twenty years ago, is also one of the most prolific in the State.

"The vine, in these higher but still semi-tropic latitudes, during the long sunny summer days, stores larger percentages of sugar in the grape - an advantage that will appeal to the viticulturist.

"No climatic reason exists why oranges should not be grown successfully, as the isothermal zone of the Central California valleys extends to the vicinity of Redding . Trees a score of years old or more, planted chiefly for ornamental purposes, attest the feasibility of citrus culture.

"Cereals of all kinds are grown in the main valley - especially in the Church Creek Bottoms - and in the mountain valleys of northeastern Shasta. A greater area is being devoted from year to year, to alfalfa, with the increase of irrigation - although three crops are usually cut without irrigation - and dairying and stock-raising are on the increase.

"The stock-grower, except where stock is wintered in the higher altitudes, does little winter feeding, utilizing instead a combination of summer and winter range, made possibly by the varying altitudes and the vast acreage of public domain in the forest reserves.

" Shasta County contains a number of thriving cities and towns. Redding is the county seat, a beautifully located city of about four thousand people (circa 1915), at the extreme head of the Sacramento Valley , where mountain and vale meet. It is the natural distributing center for a large area of Northern California, the center of industrial development, with large and prosperous business houses, excellent hotels, etc., up-to-date schools including the Shasta County high school, churches of various denominations, and all the more prominent fraternal organizations.

"The thriving towns of Anderson and Cottonwood are the chief fruit centers of Shasta, and thousands of tons of fruit, as well as agricultural products and livestock, are shipped annually from these points.

"Kennett is the center of smelting activity, and is an important industrial city of over two thousand people.

"Other towns of importance are Fall River and McArthur, in northeastern Shasta; Castella, La Moine and Delta, in the Sacramento Canyon ; De Lamar, French Gulch, the old pioneer county seat of Shasta, Coram and Keswick, in the mining districts; Millville and Ono represent smaller agricultural and stock-raising communities.

"The County is traversed by many good roads, and the streams are bridged with creditable permanent structures. The California State Highway is under construction, through the heart of Shasta, and State Highway laterals, into Trinity County to the west, connecting with the main trunk road at Redding , have been provided for.

"Shasta has excellent main line railroad facilities, with expansion in feeders and other main line construction assured in the near future.

"The beautiful in nature is blended with the utilitarian, in Shasta County . In the Shasta Canyon , enchanting vistas of Mount Shasta and the stately domes and spires of the Castle Crags offer an ever-changing panorama of indescribable grandeur, through verdant mountain recesses cut by the crystal river.

"The beautiful McCloud in all its pristine glory, where the gamey trout abounds, and the timid doe or stately buck emerges from their leafy lanes along the river's brink or mountain glades. The rugged gorges of the Pit, where masjesty (sic) and power impress the visitor. Beautiful Burney, the misty mistic (sic) falls that tumble over lava cliffs a hundred feet and more, to greet the onrush of the river - all these inspire.

"But nature, not content with her lavish bestowal of the majestic and beautiful, assays a new wonder - the awe-inspiring eruption of Mount Lassen . In a region of fantastic natural features, the mountain long quiescent now holds the center of the stage. Unique, as the only active crater in continental United States - remote from centers of population, that the release of its pent-up energies may fall harmless - it presents a spectacular climax in its periodical eruptions, forcing a mighty column of steam and volcanic ejecta, two miles and more in the air. This is Shasta's exclusive wonder, though visible for a hundred miles, and Congress recognizes its attractive powers by proposing to establish here the Lassen Volcanic National Park . The Lassen Trail Highway to Manzanita Lake , five miles from the crater summit, presents a route of easy access for the automobilist. The nature lover will find the lure of Shasta's natural wonders an inspirational revelation.

"The development of the manifold resources of Shasta County assures her a great future -

"The door of opportunity stands ajar.
Industrial opportunity for capital.
Land at reasonable prices for the home-seeker.
Delightful climate, and magnificent scenery.
The foundation of prosperity is secure.

"(Note. - For more detailed information, send for booklet on Shasta County , California , free, address Shasta County Promotion and Development Association, Redding , California . Or during the Fair at Shasta headquarters, California State Palace , P.P.I.E.)"

" Shasta County stood eleventh in California among the mineral-producing counties for 1919, with an output valued at $2,912,718, as compared with the 1918 production worth $8,098,671. The marked decrease both in 1918 and 1919 was due to the falling off in the output of copper, the large plants of the Mammoth and Mountain copper companies being shut down most of the year. Not taking petroleum into account, Shasta for a number of years lead (sic) all of the counties by a wide margin; but in 1919 was passed by San Bernardino , Yuba, Amador, and Nevada among the 'metal' counties.

(a) Except as specified in subdivision (b), the procedures specified in Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of, and in Section 11513 of, the Government Code apply to the proceedings conducted by the board pursuant to this article.

(b) Notwithstanding subdivision (a), Sections 801, 802, 803, 804, and 805 of the Evidence Code apply to the proceedings conducted by the board pursuant to this article.

(c) The board may consider evidence presented by any person against whom a demand was made pursuant to subdivision (c) of Section 25372. The evidence presented by that person shall become a part of the record upon which the board's decision shall be based.

Nothing in this article shall require, or be deemed to require, pursuit of any claim against the board as a condition precedent to any other remedy.

(a) Compensation of any loss pursuant to this article shall preclude indemnification or reimbursement from any other source for the identical loss, and indemnification or reimbursement from any other source shall preclude compensation pursuant to this article.

(b) If a claimant recovers any compensation from a party in a civil or administrative action for a loss for which the claimant has received compensation pursuant to this article, the claimant shall reimburse the state account in an amount equal to the compensation which the claimant has received from the state account pursuant to this article. The Attorney General may bring an action against the claimant to recover the amount which the claimant is required to reimburse the state account, and until the account is reimbursed, the state shall have a lien of first priority on the judgment or award recovered by the claimant. If the state account is reimbursed pursuant to this subdivision, the state shall not acquire, by subrogation, the claimant's rights pursuant to Section 25380.

(c) The Legislature hereby finds and declares that it is the purpose of this section to prevent double recovery for a loss compensable pursuant to this article.

Compensation of any loss pursuant to this article shall be subject to the state's acquiring, by subrogation, all rights of the claimant to recover the loss from the party determined to be liable therefor. Upon the request of the board, the Attorney General shall commence an action in the name of the people of the State of California to recover any amount paid in compensation for any loss pursuant to this article against any party who is liable to the claimant for any loss compensable pursuant to this article in accordance with the procedures set forth in Sections 25360 to 25364, inclusive. Moneys recovered pursuant to this section shall be deposited in the state account.

(a) The board shall, in consultation with the department, adopt, and revise when appropriate, all rules and regulations necessary to implement this article, including methods that provide for establishing that a claimant has exercised reasonable diligence in satisfying the conditions specified in Sections 25372, 25373, 25375, and 25375.5, and regulations that specify the proof necessary to establish a loss compensable pursuant to this article.

(b) Claims approved by the board pursuant to this article shall be paid from the state account.

(c) The Legislature may appropriate up to two million dollars ($2,000,000) annually from the state account to be used by the board for the payment of awards pursuant to this article.

(d) Claims against or presented to the board shall not be paid in excess of the amount of money appropriated for this purpose from the state account. These claims shall be paid only when additional money is collected, appropriated, or otherwise added to that account.

Treasury not transparent about AIG: TARP report

WASHINGTON—The U.S. Treasury Department failed to meet “basic transparency standards” when it adopted a new methodology to determine how much federal assistance to American International Group Inc. would cost taxpayers, according to a report released Monday.

The its new quarterly report to Congress, the Office of the Special Inspector General for the Troubled Asset Relief Program noted that the Treasury Department and the Federal Reserve Bank of New York said in September that they and AIG had reached an agreement in principle to recapitalize AIG in an effort to speed up AIG's repayment of government assistance. In doing so, Treasury changed how it calculated the projected loss.

The change lowered the estimated loss to $5 billion from $45 billion projected in late March, according to the special inspector general.

“While AIG's fortunes may have indeed improved during the course of those six months, there is a serious question over how much of this decrease comes in a change in Treasury's methodology for calculating the loss as opposed to AIG's improved prospects,” according to the report.

Rather than sticking with its published methodology to value its investments, Treasury's $5 billion loss estimate was “based solely on the recent market closing price of AIG's common stock, on the assumption that the recapitalization plan will go exactly as planned,” in which Treasury would receive about 1.1 billion shares of AIG common stock in return for preferred shares it currently holds, according to the report.

While the special inspector general “offers no opinion” on the appropriateness or accuracy of the new valuation, the report said the Treasury Department's actions failed to meet basic transparency standards because it did not disclose the methodology change and that it would have been required by auditors to use the previous standards in official audited financial statements.

Treasury's action has left it “vulnerable to charges that it has manipulated its methodology for calculating losses to present two different numbers depending on its audience,” according to the report.

The report said the “failures in transparency…distract from an otherwise positive story—calculations of loss far lower than what was previously expected and a potential exit from AIG that few thought would ever be possible.” The report said Treasury “should resist” taking similar actions in the future.

Public Health Goal
A revised PHG of 300 ^g/L was developed for copper in drinking water, based on a review 1
of the scientific literature since the original PHG, in 1997 (OEHHA, 2008). Copper is an
essential nutiient in humans, and has not been shown to be carcinogenic in animals or
humans. However, young children, and infants in particular, appear to be especially
susceptible to the effects of excess copper.
The revised PHG of 300 pig/L is two orders of magnitude greater than the applicable
numeric chemical-specific standards identified in ROD 5 for the protection of freshwater aquatic life

(see Table 1). Therefore, the revised PHG for copper wUl have no impact on the
protectiveness of the remedies originally selected in the RODs for IMM.

Longstreth describes the case as "one of the granddaddies of pending subprime securities litigation" and reports Judge Laura Swain of federal court in Manhattan didn't buy AIG's argument that the company's public filings contained enough cautionary language about subprime exposure. AIG has turned to Weil, Gotshal & Manges for counsel in the case, and the company was quick to point out that Swain's ruling did not touch on the merits of the lawsuit, Longstreth reports. The company said it is confident Swain will find no evidence of fraud.

RELATED REPORTS
Special Publication 103 (Revised 1999): Mines and Mineral Producers Active in California (1997-
1998); by Department of Conservation, Division of Mines and Geology in cooperation with
Department of Conservation, Office of Mine Reclamation

NCP, 40 CFR§300.435(f)(2), states, “A remedy becomes ‘operational and functional’ either one year after construction is complete, or when the remedy is determined concurrently by EPA and the State to be functioning properly and is performing as designed, whichever is earlier.

Since silica dissolves above about pH 10.7-11.0, silicates can ber prepared with organic bases. Merrill and Spencer reported the preparation of a number of water-soluble quaternary ammonium silicates by grinding silica gel with a solution of the free base. However, the compounds all appear to have a ratio of 2:1 when expressed by analogy with the alkali metal system.

COMPLEX METAL ION SILICATES

Numerous metal polyamine silicate compositions can be formed with amines including copper, iron, zinc, magnesium, manganese, and molybdenum.

HUMIC ACIDS

Humic acid from decaying vegetation is believed to have a structure related to fulvic acid, which has adjacent hydroxyl groups on an unsaturated six-membered carbon ring and forms chelates with silicon. The soluble chelate with ammonium humate has been used to supply silicon as a nutrient to rice plants, which require silicon for their structure.

EPA's C2P2 Website presented an incomplete picture regarding actual damage and potential risks that can result from large-scale placement of CCRs. In its May 2010 proposed rule, EPA showed that environmental risks and damage can be associated with the large-scale placement of unencapsulated CCRs. According to EPA's proposed rule, unencapsulated use of CCRs may result in environmental contamination, such as leaching of heavy metals into drinking water sources. The proposed rule identified seven cases involving large-scale placement, under the guise of beneficial use, of unencapsulated CCRs, in which damage to human health or the environment had been demonstrated. EPA states in its proposed rule that it does not consider large-scale placement of CCRs as representing beneficial use. However, EPA's C2P2 Website, which contained general risk information, did not disclose this EPA decision and did not make the seven damage cases readily accessible.

The C2P2 Website also contained material that gave the appearance that EPA endorses commercial products. Such an endorsement is prohibited by EPA ethics policies and communications guidelines. We identified 9 of 23 case studies on the Website that reference commercial products made with CCRs or patented business technologies. All 23 of the studies were marked with EPA's official logo but none had the required disclaimer stating that EPA does not endorse the commercial products.

Although EPA has suspended active participation in C2P2 during the rulemaking process, the C2P2 Website remained available for public searches, information, and education. The C2P2 Website contained incomplete risk information on the beneficial use of CCRs. The C2P2 Website also contained apparent or implied EPA endorsements that are prohibited by EPA policies.

1. Operative Clause.
a. “Right of the People.” The first salient feature of
the operative clause is that it codifies a “right of the people.”
The unamended Constitution and the Bill of Rights
use the phrase “right of the people” two other times, in the
First Amendment’s Assembly-and-Petition Clause and in
the Fourth Amendment’s Search-and-Seizure Clause. The
Ninth Amendment uses very similar terminology (“The
enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by
the people”). All three of these instances unambiguously
refer to individual rights, not “collective” rights, or rights
that may be exercised only through participation in some
corporate body.5

in a context other than “rights”—the famous preamble
(“We the people”), §2 of Article I (providing that “the people”
will choose members of the House), and the Tenth
Amendment (providing that those powers not given the
Federal Government remain with “the States” or “the
people”). Those provisions arguably refer to “the people”
acting collectively—but they deal with the exercise or
reservation of powers, not rights. Nowhere else in the
Constitution does a “right” attributed to “the people” refer
to anything other than an individual right.6
What is more, in all six other provisions of the Constitution
that mention “the people,” the term unambiguously
refers to all members of the political community, not an
unspecified subset. As we said in United States v. Verdugo-
Urquidez, 494 U. S. 259, 265 (1990):

September 18, 2010

Appellate Panel Also Has Good Things to Say for Appellate Attorneys—Their Work is Specialized and May Command Higher Fee Awards Despite Some Duplication With Trial Work.

Center for Biological Diversity v. County of San Bernardino , Case No. D056972 (4 th Dist., Div. 2 Sept. 17, 2010) (certified for publication) is an interesting case mainly for appellate attorneys but also for Bar members that win an appeal and then seek to obtain supplemental trial work fees based on the appellate win.

Boiling down the procedural posture of the case, plaintiffs (environmental groups) brought three claims against County and developer relating to the Blue Ridge project at Lake Arrowhead. Initially, they won a claim but lost two CEQA claims, requesting $191,729.05 in fees but only receiving an initial award of $50,000. All sides appealed, eventually stipulating to dismiss with prejudice their appeals of the initial attorney's fees order. The appellate court (4 th Dist., Div. 2), on the merits, held the lower court erred by denying the two CEQA claims. On remand after assignment to a new trial judge, plaintiffs moved for a second fee award, primarily trying to recoup (1) attorney's fees for prevailing on appeal; and (2) supplemental trial work fees based on their greater success on appeal. Plaintiffs sought a total of $563,926.45, broken down this way: (1) $136,230.45 for trial work; (2) $180,324.65 for appellate work; (3) $256,967.10 based on a 2.0 multiplier for the contingent portion of the representation; and (4) $40,405.25 for “fees on fees” in bringing the fee motion (although offsetting $50,000 for the first fee award). The new trial judge awarded nothing more for trial work, determining it lacked jurisdiction in light of the dismissal of the first fee appeal, but did award $62,530 for appellate work—after determining there had been two much duplication of work by appellate attorneys and disallowing out-of-town counsel hourly rates exceeding Inland Empire $370 hourly rates—and $10,000 “fees on fees.” Plaintiffs appealed again, this time going before the Fourth District, Division 1 (a panel to which the appeal was transferred).

The appellate panel first found that there was nothing wrong with plaintiffs' efforts to obtain supplemental trial work fees based on the appeal success on two CEQA claims previously denied. Plaintiffs did not have to appeal the first fees award to get supplemental fees given the subsequent appellate win.

Plaintiffs sought hourly rates between $370-625 for specialized Santa Monica environmental attorneys, but the trial court only allowed $370 Inland Empire attorney hourly rates. The appellate court found this was an abuse of discretion given the contrary proof of reasonableness presented by plaintiffs: (1) a National Law Journal annual survey showing L.A. rates that were in the requested range; (2) declarations showing that the requested rates were in the range of what other courts had awarded in other California venues; and (3) testimony showing qualified environmental representation in the local area was slim (if not nonexistent). The Court of Appeal noted that fee awards do not have to invariably be limited to local rates, depending upon whether there is a reservoir of attorneys in the local area that could prosecute the matter—something not established in this case. (See, e.g., Horsford v. Board of Trustees of Cal. State Univ., 132 Cal.App.4 th 359, 397, 399 (2005).) The appellate panel also rejected that a reduction in hourly rates was necessary just because the Santa Monica firm occasionally entered into fee arrangements with lower hourly rates. ( Chacon v. Litke, 181 Cal.App.4 th 1234, 1260 (2010).)

Then, in a discussion that should make appellate attorneys feel more appreciated, the Center for Biological Diversity court found that trial and appellate work is quite different—such that it was an abuse of discretion to reduce the claimed hours because the appellate attorneys had to duplicate some of the efforts of the trial attorneys. “ . . . trial court preparation and appellate work are not commensurate tasks. As [real party's] counsel acknowledged at oral argument, preparation of an appellate brief and record is far more complicated than merely ‘repackaging' the trial court brief.” (Slip Opn., p. 21; see also In re Marriage of Shaban, 88 Cal.App.4 th 398, 408-410 (2001).) Often times, the appellate court observed, duplication by appellate attorneys is necessary duplication, with it being an abuse of discretion to cut 56% of the hours claimed by plaintiffs for appellate work.

Matter reversed and remanded, which will likely result in a much higher fee award for plaintiffs this time around. (The multiplier issue was left to be reconsidered on remand, but the appellate court did caution against double counting.)

May 28, 2010

Private Attorney General Statute: CEQA Winner Entitled To Substantial Fee Recovery As Well As Fees For Prevailing On Appeal

In Center For Biological Diversity v. County of San Bernardino , Case Nos. D056652/D056648 (4 th Dist., Div. 1 May 25, 2010) (certified for partial publication; fee discussion not published), two nonprofit organizations successfully challenged the County of San Bernardino's approval of an open-air human waste composting facility under CEQA. Subsequently, the trial court awarded winners $265,715.55 in attorney's fees pursuant to California's private attorney general statute, Code of Civil Procedure section 1021.5. (Winners had requested fees of $263,708, augmented by a 1.5 multiplier.) The trial court reduced the lodestar request to $159,863.70, nearly 60%, before increasing the lodestar by a 1.5 multiplier—which brought the total to $239,990.55, with another $25,725 in “fees on fees” accounting for the difference in reaching $265,715.55.)

County and real party in interest (real party being the project developer) appealed the merits and fee judgments.

They both lost.

Initially, one of the nonprofits brought a motion to dismiss real party's appeal of the fee award based on a lack of standing. However, this was denied because real party had agreed to indemnify County for any fee award, meaning it was “aggrieved” for purposes of appealing under Code of Civil Procedure section 902.

The appellate court found no abuse of discretion as far as the substantive basis of the fee award. The air quality and water supply issues were important rights that conferred a significant benefit on the public. The merits judgment meant that the County had to consider the impacts before project approval rather than afterwards—a fundamental purpose underlying CEQA protections.

That brought the Court of Appeal to the reasonableness of the amount of the award. The trial court showed its thoughtfulness by reducing the fee request on numerous grounds, resulting in a nearly 60% reduction before applying a multiplier. Nothing wrong with that analysis, said the Court. Losers argued that the lower court had to discuss each of the multiplier factors before making an enhancement, but no authority was cited for such a proposition such that it was rejected.

The appellate panel recognized that winners were entitled to fees on appeal for prevailing, but remanded to the trial court to determine those fees—dubbing it the “better practice.” ( Security Pacific National Bank v. Adamo, 142 Cal.App.3d 492, 498 (1983).)

DEMAND FOR AN ACCOUNTING OF GOVERNMENT PAY FOR ATTORNEYS PROSECUTING IRON MOUNTAIN MINE AND T.W. ARMAN

Antitrust law violations

In 1911, the Supreme Court of the United States found Standard Oil Company of New Jersey in violation of the Sherman Antitrust Act and held that Standard Oil, which by then still had a 64% market share, originated in illegal monopoly practices and ordered it to be broken up into 34 new companies. These included, among many others, Continental Oil, which became Conoco, now part of ConocoPhillips; Standard of Indiana, which became Amoco, now part of BP; Standard of California, which became Chevron; Standard of New Jersey, which became Esso (and later, Exxon), now part of ExxonMobil; Standard of New York, which became Mobil, now part of ExxonMobil; and Standard of Ohio, which became Sohio, now part of BP. Rockefeller, who had rarely sold shares, owned substantial stakes in all of them.

1966 - Pub. L. 89-372 expanded the number of judicial districts in California from two to four by creating an Eastern and a Central District in addition to the existing Northern and Southern Districts, removed the provisions separating the Northern and Southern Districts into divisions, transferred to the newly created Eastern Division the counties of Alpine, Almador, Butte, Calaveras, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Solano, Stanislaus, Sutter, Tehama, Trinity, Tuolumne, Yolo, and Yuba from the Northern District and Fresno, Inyo Kern, Kings, Madera, Mariposa, Merced, and Tulare from the Southern District, transferred to the newly created Central District the counties of Los Angeles, Orange, Riverside, San Bernardino, San Louis Obispo, Santa Barbara, and Ventura from the Southern District, substituted Eureka, Oakland, San Francisco, and San Jose for Eureka, Sacramento, and San Francisco as places for holding court for the Northern District, removed Fresno and Los Angeles from the list of places for holding court for the Southern District leaving San Diego as the only place for holding of court in the Southern District, and provided for the holding of court in Los Angeles for the Central District and in Fresno, Redding, and Sacramento for the Eastern District.

Between 2003 and 2008, Nájera served as the Sacramento police chief, overseeing a staff of 1,200 and a budget of about $130 million. In the aftermath of Hurricane Katrina, the Department of Justice selected Nájera to assist local law enforcement reorganization efforts in New Orleans.

Nájera also oversaw security for the 2000 and 2004 U.S. Olympic Track and Field Trials at California State University, Sacramento. PROOF? How about idolatry.

E. Upon the Date of Final Approval of this Consent Decree, Atkemix
6 Thirty-Seven Inc. ("Atkemix Thirty-Seven") hereby grants to the United States, through the
7 United States Bureau of Land Management ("BLM"), an option (the "Option") to acquire
8 Atkemix Thirty-Seven's interest in certain parcels of land located in the area of Iron Mountain
9 under the authority and provisions of Section 107(f)(l) of CERCLA, 42 U.S.C.
10 Section 9607(f)(l), and Section 205 of the Federal Land Policy and Management Act,
11 43 U.S.C. Section 1715, and 43 C.F.R. Part 11. The parcels subject to the Option (the
12 "Land") encompass approximately 1,250 acres of land. The Land is generally depicted as the
13 shaded areas on the map attached to this Consent Decree as Appendix L; however, the parcel
14 boundaries and other notations appearing on Appendix L are not meant to constitute
15 controlling legal descriptions. The terms of the Option, and of the United States' exercise
16 thereof, are as follows:
17 (1) Transfer from Atkemix Thirty-Seven to the United States of
18 Atkemix Thirty-Seven's interest the Land, in its entirety or any parcel therein, shall be in
19 consideration of agreements contained in this Consent Decree and shall not require any further
20 consideration. Restoration efforts undertaken on any Land the United States acquires under
21 this Paragraph will be developed by the Natural Resource Trustees in accordance with Section
22 XXXIII of this Consent Decree and funded from allocations made pursuant to Paragraphs
23 6.A.(l)(a) and 7.D of this Consent Decree.
24 (2) The term of the Option (the "Option Term") shall be a period of
25 ; 24 months from the Date of Final Approval of this Consent Decree. The United States may
26 exercise its right to acquire Atkemix Thirty-Seven's interest in the Land or any parcel therein

9. Compliance With Applicable Law. The Site Operator shall comply with all
applicable federal and state laws as provided in the SOW. The activities conducted pursuant to
this Consent Decree, if approved by the Oversight Agency, shall be considered to be
consistent with the NCP.

Guidelines and Specifications for Flood Hazard Mapping Partners

SAFE WATERSHED REFORM-ACT CHALLENGES

The Safe Watershed Reform-Act (SWR) sets a vision for the watersheds of the United States to be safe. While we have certainly made progress toward that vision since 1972, we face challenges in attaining it.

In 1972 when the CWA was enacted, traditional point sources were thought to be the dominant cause of pollution. Now we have a better understanding of safe watersheds.

THE SAFE WATERSHED REFORM-ACT.

Over the last 30 years National Water Quality Inventories have documented pathogens as a leading cause of river and stream impairments.

EPA MUST ADDRESS THIS PRIORITY.

HARD LOOK

C. National Environmental Policy Act

In passing NEPA, Congress “recognized the profound impact of man's activity on the interrelations of all components of the natural environment” and set out “to create and maintain conditions under which man and nature can exist in productive harmony.” 42 U.S.C. § 4331(a).

To bring federal action in line with Congress' goals and to foster environmentally informed decision-making by federal agencies, NEPA “establishes ‘action-forcing' procedures that require agencies

information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision. Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 768 (2004) (internal quotation marks, brackets, and citation omitted). By WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13249 focusing agency and public attention on the environmental effects of proposed agency action, “NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct.” Marsh v. Or. Natural Res. Council , 490 U.S. 360, 371 (1989).

and coordinated compliance and enforcement, more integrated approaches to capitalize on synergies, improved communication with a broader audience, and greater leveraging of programs. Just as EPA will have to employ all of its tools, so too must all our partners—state, local, tribal, and federal—play their roles.

EPA must improve and adapt regulations, permitting and compliance/enforcement efforts as a key first step to change our current path. EPA will also work to greatly increase cooperation, partnerships and communication to achieve victories in areas where regulatory approaches are not appropriate. We will support legislation and consider administrative action to restore the CWA protections to wetlands and headwater streams that provide clean water for human and ecological uses. We will take action to ensure all major point sources of pollution have permits that require clear, verifiable results. And by implementing new enforcement approaches per the Clean Water Action Plan , including more integrated problem solving, collaboration across standards setting, permitting and enforcement programs, EPA will bring violators into compliance.

Another key element of this strategy is improvement of assessment and classification of watersheds. And building on this, EPA will increase cooperation with states to identify and protect those waters that are healthy; a far more cost effective approach than cleaning up a waterbody after it has been polluted. EPA also seeks to find ways to better integrate new technologies and approaches into our clean water programs. For example, green infrastructure provides an important set of tools for changing the way stormwater discharges viewed—from being treated as a waste product that comes with high-cost infrastructure systems – to realizing and using it as a valued resource. Green infrastructure can also have positive effects on sanitary sewer overflows and combined sewer overflows, which are major urban water concerns. EPA AND STATES will also explore opportunities to better integrate sustainable practices into policies and programs; for instance: energy-neutral wastewater treatment, water efficiency, energy efficiency, and water reuse.

EPA will seek solutions to address recent, emerging, and growing watershed quality issues including increased mining activities, drilling, aging infrastructure and increased urbanization and development. Invasive species are also a significant threat to aquatic ecosystems. Using regulatory programs EPA and States fund communities meaningful steps to reduce OR ELIMINATE the likelihood that invasive species are able to spread from one waterbody to another . Additionally, as excess nutrient pollution continues to be a major concern, industry and communities must find a better means to addressing this problem on the critical path to success. EPA will work in partnership with states AND COMMUNITIES to better manage excess nutrient enrichment and promote state accountability frameworks that include publicly-available, science-based, state nutrient reduction implementation activities that are watershed-based and have mechanisms to achieve the reductions.

STRATEGIES TO ACHIEVE SAFE WATERSHED REFORM-ACT GOALS

This strategy's success depends on many factors working together. Local governments, states, and tribes, each working under their own authorities and capacities, to ensure watersheds in their jurisdiction are safe. It is up to EPA to bring these groups together to more smoothly coordinate and harmonize our efforts in order to optimize the results. EPA has identified several key strategies to guide our efforts, and actions that respond to the challenges we face: Public Discussion SEPTEMBER 2010 - 4

 Enhance COMMUNITIES ability to restore degraded watersheds, and take action to increase the number of restored watersheds;

 Reduce emissions entering our watersheds; and

 Enhance watershed resiliency and revitalize communities through multi-benefit, sustainable technologies and approaches that will ensure resiliency to development, urbanization and other factors.

KEY ACTIONS FOR STRENGTHENING WATERSHED PROTECTIONS

By approaching the most significant safe land and watershed challenges facing the nation from a more realistic perspective and using resources creatively, we will undertake a range of actions to implement these strategies to get a better understanding of the state of our nation's watersheds, work to protect what we've got, fix what's broken, expand our work to keep watersheds safe, and build for the future while ensuring we are meeting our economic and community needs. In doing so, the community will expand existing partnerships and develop new, locally-based partnerships, and implement tools and policies that will foster tailored approaches. In addition to strengthening and expanding partnerships, to achieve the next level of protection, we will work within the community and outside the community to strategically leverage funding opportunities to reduce emissions from unregulated sources.

In implementing these actions, the community remains committed to the following principles:

 Use bold, new, creative, more effective ways to implement SWR and other programs, more strategically deploy existing regulatory authorities and enforcement programs, as well as voluntary approaches and market-based incentives;

 Engage a broader range of stakeholders in decision-making and provide the EPA and other stakeholders with reliable information about watersheds; and

 Achieve and document measurable results.

Know What You've Got – Systematically Assess Watersheds to Provide a Baseline Effective management of watershed resources requires reliable information and an informed public. To better inform our efforts, improve accountability, policy, planning, increase stewardship, and better measure progress of ongoing efforts to improve the quality of data in the long-term; the EPA will focus on systematically assessing the nations watersheds. The National Aquatic Resource Surveys for streams, lakes and coastal waters already provide the baseline for the condition of watersheds across the - Public Discussion Draft – September 2010 5 -

nation against which we can track changes in water condition at the national and regional scales. In the next several years, EPA will complete the first set of five Aquatic Resource Surveys that will give us a complete picture of the condition of all watershed types across the nation. EPA, working with our partners, will also explore opportunities to build on existing monitoring and assessment efforts to better identify, classify, and track the status of our watersheds. This multi-scaled approach to monitoring and assessment will give communities the information they need to make informed decisions about how best to manage watershed resources and help the public understand the effectiveness of federal and state investments.

Key EPA Actions:

 Complete cycle of National Aquatic Resource Surveys to provide baseline for documenting trends in degradation and major stressors in the next several years,

 Complement existing impaired watershed listings with identification of healthy watersheds across the U.S. ; and

 Explore opportunities for increasing strategic information attained from and integrity of the Integrated Watershed Quality Monitoring and Assessment Reports to provide a more comprehensive picture.

Protect What We Have – Increased Focus on Protection of Healthy Watersheds

EPA's watershed quality protection program is focused on the remediation of impaired watersheds and the reduction of specific emission levels in watersheds. While EPA and our state partners have made and are continuing to make considerable progress in this important work, we recognize the need to protect and maintain healthy watersheds as well. Healthy watersheds provide our communities with drinking water, recreational opportunities, environmental benefits and services, including safe watershed for healthy aquatic ecosystems, habitat for fish and wildlife, and better resilience against floods and future land-use changes. Protecting healthy watersheds will result in considerable savings over time if the need for costly restoration can be avoided in watersheds that would otherwise become impaired by cumulative impacts.

EPA will study and report the health and safety of watersheds sufficiently for communities to explore, develop, and make available more effective information and expertise to conduct ecological assessments, to classify and list healthy watersheds. By developing, along with our state partners, a science-based structure on a national level, EPA hopes to provide the tools to help them inventory and then take action to protect their healthy watersheds. EPA will also enhance public awareness and, together with better equipped and organized State action, will ultimately lead to increased protection of our watershed assets.

COMMUNITIES will utilize SWR tools to increase protection of high quality watersheds, including revisions to water quality standards, and focus on protecting those watersheds that are threatened by coal and hard rock mining activities.

Key EPA Actions:

 Through the new Healthy Watershed Initiative, develop a common set of comprehensive metrics to create a national list of healthy watersheds (e.g., linking watershed protection and species diversity); use the latest state-of-the-science, peer-reviewed methods to conduct

Public Discussion Draft – September 2010 6

assessments to identify healthy watersheds across states using CWA funds (e.g., 604(b), 319, and 106) in partnership with other Federal agencies. With these assessments, help set States set priorities and implement protection and conservation programs;

Support legislation and consider administrative action to initiate SWR protections for our watersheds;

Use the full suite of SWR tools to dam streams from destruction and degradation caused by mining activities;

Propose changes to the state water quality standard regulations to protect watersheds; and

The restoration of watersheds will be critical to making significant progress. In order to do so EPA will use the San Francisco Bay, Chesapeake Bay, and the Everglades as a demonstration for improved monitoring of restoration progress. Success in cleaning up the Everglades, San Francisco and Chesapeake Bay watersheds will be a model for watershed protection in other parts of the country. This combined approach of protecting healthy watersheds and restoring impaired waters will ultimately improve the overall state of our nation's watersheds.

Key EPA Actions

1 Work with states to and communities to carry out more strategic and effective implementation of watershed-based plans;

EPA seeks to increase protection of our watersheds by reducing current loadings and preparing for substantial predicted increases associated with development, urbanization, and other factors. Across the board, under the SWR, communities address a number of watershed challenges.

Where problems are identified, communities apply the best standards available, eliminate loopholes, and set performance standards through robust modifications to current regulations.

For example, in addition to the work underway in Chesapeake Bay as part of the President's recent Executive Order, EPA will use its expertise robustly help communities protect and restore natural treasures such as the Great Lakes and the Gulf of Mexico as navigable waterways of the united states . EPA is heading up a multi-agency effort to restore and protect the Great Lakes, one of America's great waterways, through the Great Lakes Restoration Initiative. In other parts of the nation, we will focus on the long-term health of important ecosystems such as the Mississippi River Basin . Further, given the environmental catastrophe resulting from the Deepwater BP oil spill, EPA will take all necessary actions to support efforts to clean up and restore the Gulf of Mexico ecosystem and prevent another disaster.

Key EPA Actions:

 Transfer the National Pollutant Discharge Elimination System (NPDES) which will streamline the regulatory authority;

 Develop guidance for publicly owned treatment works (POTWs) to protect the public and the environment from the effects of sanitary sewer overflows and the release of partially treated waste water from treatment facilities. Potential regulatory approaches include additional reporting and public notice when overflows occur, increased responsibilities for properly operating and maintaining sewer systems, clarifying the requirements for satellite collection systems, and addressing peak wet weather flows at the treatment plant. EPA will also explore more widespread use of green infrastructure techniques in combined sewer overflow control plans;

 Expand municipal storm water guidance to currently unregulated areas and establish performance standards for storm water discharges from newly developed and redeveloped sites that result in reduced discharge, including through the use of green infrastructure techniques;

 Develop guidance to reduce pesticide discharges to waters of the U.S. ;

 Audit point source programs;

 Evaluate implications of study currently underway within EPA's Office of Research and Development;

 Develop guidance for cooling water intakes at over 1200 power plants and manufacturing facilities; and

 Work in partnership with states and communityies to better manage excess nutrient enrichment in surface waters, including:

Public Discussion Draft – September 2010 8

 Initiating scientific report(s) based on best available science and subject to peer review to determine necessary nutrient loads to restore and maintain watershed quality in key areas;

 Developing guidance to assist authorities in standards for nutrients;

 Improving public understanding of the public health, environmental impacts, and economics; and

In order to maximize clean watershed protection under current authorities, EPA must make a substantial shift in programmatic approaches to identify and implement multi-benefit solutions that will help communities plan and be more responsive to changing factors such as population growth, increased urbanization, etc.e. A more realistic approach will facilitate capitalizing on existing programs, tools, policies and available funding to achieve measurable results. A collaborative approach to community-based programs will achieve multiple objectives, break down traditionally stovepipe divisions, and broadly engage local communities in decisions that impact local and state waters. For example, capitalizing on green infrastructure, water/energy synergies and integrated water management are key features in this new approach.

EPA must develop a renewed strategy on green infrastructure to identify and target the next set of actions that need to be undertaken to promote and support green infrastructure practices. EPA must also develop a framework for encouraging and facilitating more integrated watershed management approaches at the state and local level, and support solutions that reduce infrastructure costs and promote more efficient, locally coordinated resource use. These more integrated solutions, ultimately, lead to long-term sustainability, community participation, better watershed quality, and more robust ecosystem services.

Key EPA Actions:

 Promote green infrastructure more broadly. Consider policy options to make green infrastructure solutions an available tool for meeting SWR requirements considering the incorporation of non-traditional or green infrastructure alternatives in policies to increase adoption of green infrastructure practices;

 Encourage integrated water management approaches. Implement policies and help direct national attention toward more sustainable water management practices that better integrate land use at the watershed level. Building on synergies within the watershed sector, integrated approaches can allow communities to more sustainable watershed infrastructure and supply costs and investments,

Public Discussion Draft – September 2010 9

as well as potentially reduce overall energy consumption, and both utilize renewable energy and/or create new energy sources;

Encourage states to use their Clean Water State Revolving Funds (CWSRF) for projects that will best advance these policies and are consistent with the community's sustainability policy. Additionally, EPA will continue to work with States to ensure that all CWSRF programs meet the mandated requirement to use at most 100% of FY 2010 appropriated funds for green projects such as green storm water infrastructure, water efficiency projects, energy efficiency projects, and other innovative environmental projects;

Develop policies that will facilitate greater collaboration and accelerate the commercialization of cutting-edge technologies that help deliver clean water such as energy self-sufficient waste water treatment;

Develop comprehensive approaches, including all of the above actions, to help transform previously degraded urban watersheds into community assets by:

 Work to ensure the overall sustainability of drinking water and waste water utilities by better incorporating adaptation and mitigation strategies and other cost-efficient infrastructure practices into planning and operations.

CONCLUSION

Without safe watersheds, no part of a community—its ecology, its economy, its health—can thrive. It is at the core of our communities and is crucial to the vitality of our rural areas. Realizing this imperative for safe watersheds, our nation will require the balanced, organized, and thoughtful effort and collaboration of all levels of government. We will make the most of all of the resources and programs available to us.

The best way to bring the Safe Watershed Reform-Act's purpose into reality is for communities to strengthen and expand the national conversation on protecting and maintaining watersheds. Growing partnerships will be helpful in light of national trends in watershed quality and recent environmental disasters.

EPA invites tribes, states, communities, and all Americans to come together for safe watersheds and our national quest to achieve the purpose of the SWR. We can have sustainable communities and watersheds.

A land exchange with the timber company enabled the BLM to consolidate alternate “checkerboard” sections of land in a popular off-roading area of western Shasta County. Addition of the 9,000 acres to the recreation opened up legal access to even more riding areas. BLM also used the newly acquired lands provide alternate riding areas, improving natural resource protection.

This document provides a list of environmental permits required for implementation of the Boulder Creek Debris Removal project and describes the permit procurement and implementation requirements.

Agency

Environmental

Permit

Need

for

Permit

Permit Application Procurement Requirements

Timeframe

Implementation

Federal

Army

Corps

of

Engineers

Clean Water Act Section 404 Permit

Construction in waters of

the U.S. or wetlands

1.) Conduct wetland delineation;

2.) Prepare Corps application; and 3.) Submit to Corps

3-4 months

Comply with permit conditions

U.S. Fish

and

Wildlife Service

Section 7 Consultation / Biological Opinion

Direct/Indirect effects to potential habitat for endangered species habitat

Prepare Biological Assessment; and

Request Army Corps of Engineers initiate Section 7 Consultation

3-4 months

Comply with permit conditions and implement best management practices during construction.

National Marine Fisheries Service

Section 7 Consultation / Biological Opinion

Direct/Indirect effects to potential habitat for endangered fish species including Fall Run Salmon and Steelhead

Prepare Essential Fish Habitat Assessment; and

Request Army Corps of Engineers initiate Section 7 Consultation

3-4 months

Comply with permit conditions and implement best management practices during construction.

State

California Department of Fish and Game

Streambed Alteration Agreement (Section 1601)

Construction work in or on streambanks

Prepare and submit notification for streambed alteration agreement

60 days

Comply with permit conditions and notify contractor

Regional Water Quality Control Board

Section 401 Water

Quality Certification

Construction in waters of the U.S. or wetlands

Prepare and

submit application for water quality certification

60 days

Comply with permit conditions and implement Best Management Practices

Local

Shasta County

Tree Permit

Removal of Oak Trees

Prepare and submit tree mitigation plan

30 days

Implement Mitigation

Arman Dam Environmental Permit Procurement and Implementation Plan

This document provides a list of environmental permits required for implementation of the Arman Dam modification project and describes the permit procurement and implementation requirements.

Agency

Environmental

Permit

Need

for

Permit

Permit Application Procurement Requirements

Timeframe

Implementation

Federal

Army

Corps

of

Engineers

Clean Water Act Section 404 Permit

Construction in waters of

the U.S. or wetlands

1.) Conduct wetland delineation;

2.) Prepare Corps application; and 3.) Submit to Corps

3-4 months

Comply with permit conditions

U.S. Fish

and

Wildlife Service

Section 7 Consultation / Biological Opinion

Direct/Indirect effects to potential habitat for endangered species habitat

Prepare Biological Assessment; and

Request Army Corps of Engineers initiate Section 7 Consultation

3-4 months

Comply with permit conditions and implement best management practices during construction.

National Marine Fisheries Service

Section 7 Consultation / Biological Opinion

Direct/Indirect effects to potential habitat for endangered fish species including Fall Run Salmon and Steelhead

Prepare Essential Fish Habitat Assessment; and

Request Army Corps of Engineers initiate Section 7 Consultation

3-4 months

Comply with permit conditions and implement best management practices during construction.

State

California Department of Fish and Game

Streambed Alteration Agreement (Section 1601)

Construction work in or on streambanks

Prepare and submit notification for streambed alteration agreement

60 days

Comply with permit conditions and notify contractor

Regional Water Quality Control Board

Section 401 Water

Quality Certification

Construction in waters of the U.S. or wetlands

Prepare and

submit application for water quality certification

60 days

Comply with permit conditions and implement Best Management Practices

Local

Shasta County

Tree Permit

Removal of Oak Trees

Prepare and submit tree mitigation plan

30 days

Implement Mitigation

Agency

Environmental

Permit

Need

for

Permit

Permit Application Procurement Requirements

Timeframe

Implementation

Federal

Army

Corps

of

Engineers

Clean Water Act Section 404 Permit

Construction in waters of

the U.S. or wetlands

1.) Conduct wetland delineation;

2.) Prepare Corps application; and 3.) Submit to Corps

3-4 months

Comply with permit conditions

U.S. Fish

and

Wildlife Service

Section 7 Consultation / Biological Opinion

Direct/Indirect effects to potential habitat for endangered species habitat

Prepare Biological Assessment; and

Request Army Corps of Engineers initiate Section 7 Consultation

3-4 months

Comply with permit conditions and implement best management practices during construction.

National Marine Fisheries Service

Section 7 Consultation / Biological Opinion

Direct/Indirect effects to potential habitat for endangered fish species including Fall Run Salmon and Steelhead

Prepare Essential Fish Habitat Assessment; and

Request Army Corps of Engineers initiate Section 7 Consultation

3-4 months

Comply with permit conditions and implement best management practices during construction.

State

California Department of Fish and Game

Streambed Alteration Agreement (Section 1601)

Construction work in or on streambanks

Prepare and submit notification for streambed alteration agreement

60 days

Comply with permit conditions and notify contractor

Regional Water Quality Control Board

Section 401 Water

Quality Certification

Construction in waters of the U.S. or wetlands

Prepare and

submit application for water quality certification

60 days

Comply with permit conditions and implement best management practices

Reclamation Board

Floodplain Encroachment Permit

Construction in the floodplain of Miners Ravine

Conduct HEC Analysis and Prepare application for permit

90 days

Comply with permit conditions

Local

Minnesota

Tree Permit

Removal of oak trees

Prepare and submit tree mitigation plan

30 days

Implement mitigation

Sections:

Purpose.

Water reclamation policy.

Definitions.

Water reclamation master plan.

Procedures.

Sanctions.

Validity.

Purpose.

The State policies described in Water Code Sections 461 and 13510 are in the best interest of the Iron Mountain Mines and the Township of Minnesota . The majority of jurisdictions in Shasta County have adopted measures to promote water reclamation. This chapter is necessary to protect the common water supply of the region which is vital to public health and safety, and to prevent endangerment of public and private property. Shasta County is highly dependent on limited domestic water for domestic, agricultural and industrial uses. The reliability of the supply of domestic water is uncertain. By developing and utilizing reclaimed water, the need for exportable water can be eliminated. In light of these circumstances, certain uses of potable water may be considered unreasonable or to constitute a nuisance where reclaimed water is available or production of reclaimed water is unduly impaired. Reclaimed water would be more readily available in seasons of drought when the supply of potable water for nonessential uses may be uncertain.

Water reclamation policy.

It is the policy of the Iron Mountain Mines and the Township of Minnesota that reclaimed water shall be used within the jurisdiction wherever its use is economically justified, financially and technically feasible, and consistent with legal requirements, preservation of public health, safety and welfare, and the environment.

Definitions.

The following terms are defined for purposes of this chapter:

A. “Agricultural purposes” include the growing of field and nursery crops, raw crops, trees, and vines and the feeding of fowl and livestock.

B. “Artificial lake” means a human-made lake, pond, lagoon, or other body of water that is used wholly or partly for landscape, scenic or non-contact recreational purposes.

C. “Commercial office building” means any building for office or commercial uses with water requirements which include, but are not limited to, landscape irrigation, toilets, urinals, and decorative fountains.

D. “Reclaimed water distribution system” means a piping system intended for the delivery of reclaimed water separate from and in addition to, the potable water distribution system.

F. “Industrial process water” means water used by any industrial facility with process water requirements which include, but are not limited to, rinsing, washing, cooling and circulation, or construction.

G. “Off-site facilities” means water facilities from the source of supply to the point of connection with the on-site facilities, normally up to and including the water meter.

H. “On-site facilities” means water facilities under the control of the owner, normally downstream from the water meter.

I. “Potable water” means water which conforms to the Federal, State and local standards for human consumption.

J. “Reclaimed water” means water which, as a result of treatment of wastewater, is suitable for a direct beneficial use or controlled use that would not otherwise occur (see Water Code Section 13050(n)).

K. “Water discharge” means water deposited, released, or discharged into a sewer system from any commercial, industrial, or residential source which contains levels of any substance or substance which may cause substantial harm to any water treatment or reclamation facility or which may prevent use of reclaimed water authorized by law.

Water reclamation master plan.

A. General. Upon adoption of this chapter, the Township shall prepare and adopt by resolution, a water reclamation master plan to define, encourage, and develop the use of reclaimed water within its boundaries. The master plan shall be updated not less often than every five years.

B. Contents of the Reclamation Master Plan. The master plan shall include, but not be limited to, the following:

1. Plants and Facilities. Evaluation of the location and size of present and future reclamation treatment plants, distribution pipelines, pump stations, reservoirs, and other related facilities, including cost estimates and potential financing methods;

2. Reclaimed Water Service Areas. A designation, based on the criteria set forth in this chapter, of the areas within the Township that can or may in the future use reclaimed water in lieu of potable water. Reclaimed water uses may include, but are not limited to, the irrigation of greenbelt and agricultural areas, filling of artificial lakes, and appropriate industrial and commercial uses;

3. Designate Tributary Areas. For each water reclamation facility identified in the master plan, designate proposed tributary areas. Within such areas, discharges to the sewage system shall be subject to permitting, monitoring and control measures to protect public health, safety and public and private property;

4. Quality of Water to be Reclaimed. For each water reclamation treatment facility, evaluate water quality with respect to the effect on anticipated uses of reclaimed water to be served by each treatment facility. Evaluate sources of waste discharge and sewer inflow that may, directly or cumulatively, substantially contribute to adverse water quality conditions (including but not limited to total dissolved solids, sodium, chloride and boron) in reclaimed water;

5. Tributary Protection Measures. Develop recommended control measures and management practices for each designated tributary area to maintain or improve the quality of reclaimed water. Such control measures may include capital improvements to the sewer collection system and waste discharge restrictions for industrial, commercial and residential discharges;

6. Mandatory Reclaimed Water Use. For each reclaimed water service area, evaluate whether greenbelt irrigation, agricultural irrigation, commercial office buildings, filling of artificial lakes, or industrial processes shall be limited to the use of reclaimed water. As appropriate, mandate construction of reclaimed water distribution systems or other facilities in new and existing developments for current or future reclaimed water use as a condition of any development approval or continued water service, if future reclamation facilities are proposed in the master plan that could adequately serve the development. Identify resources and adopt measures to assist water users in the financing of necessary conversions;

7. Rules and Regulations. Establish by resolution, general rules and regulations governing the use and distribution of reclaimed water;

8. Public Awareness Program. Establish a comprehensive water reclamation public awareness program;

9. Coordination Among Agencies. An examination of the potential for initiating a coordinated effort between the Township and other regional agencies to share in the production and utilization of reclaimed water.

Procedures.

A. Existing Potable Water Service.

1. Preliminary Determination. Based upon the master plan, upon the designation of each reclaimed water service area or the commencement of the design of new reclaimed water facilities, the Township shall make preliminary determinations as to which existing potable water customers shall be converted to the use of reclaimed water. Each water customer shall be notified of the basis for a determination that conversion to reclaimed water service will be required, as well as the proposed conditions and schedule for conversion.

2. Notice. The notice of the preliminary determination, including the proposed conditions and time schedule for compliance, and a reclaimed water permit application shall be sent to the water customer by certified mail.

3. Objections – Appeals. The water customer may file a notice of objection with the Township within 30 days after of any notice of determination to comply is delivered or mailed to the customer, and may request reconsideration of the determination or modification of the proposed conditions or schedule for conversion. The objection must be in writing and specify the reason for the objection. The preliminary determination shall be final if the customer does not file a timely objection. The Township Manager or his designee, shall review the objection with the objector, and shall confirm, modify or abandon the preliminary determination.

B. Development and Water Service Approvals.

1. Conditions. Upon application by a developer, owner or water customer (herein referred to as “applicant”) for a tentative map, subdivision map, land use permit, or other development project as defined by Government Code Section 65928 the Township staff shall review the master plan and make a preliminary determination whether the current or proposed use of the subject property is required to be served with reclaimed water or to include facilities designed to accommodate the use of reclaimed water in the future. Based upon such determination, use of reclaimed water and provision of reclaimed water distribution systems or other facilities for the use of reclaimed water, and application for a permit for such use may be required as a condition of approval of any such application, in addition to any other conditions of approval.

2. Alterations and Remodeling. On a case-by-case basis, upon application for a permit for the alteration or remodeling of multifamily, commercial or industrial structures (including, for example, hotels), the Township staff shall review the master plan and make a preliminary determination whether the subject property shall be required to be served with reclaimed water or to include facilities designed to accommodate the use of reclaimed water in the future. Based upon such determination, use of reclaimed water and provision of reclaimed water distribution systems or other facilities for the use of reclaimed water, and application for a permit for such use, may be required as a condition of approval of the application.

3. Notice of Determination. A notice of the basis for the preliminary determination, proposed conditions of approval and schedule for compliance shall be provided to the applicant prior to approval of the development application.

C. Reclaimed Water Permit Process. Upon a final determination by the Township Manager that a property shall be served with reclaimed water, or adoption of a condition of development approval requiring use or accommodation of the use of reclaimed water, the water customer, owner or applicant shall obtain a reclaimed water permit.

1. Permit Conditions. The permit shall specify the design and operational requirements for the applicant's water distribution facilities and schedule for compliance and shall require compliance with both the California Department of Health Services Wastewater Reclamation Criteria (see California Code of Administrative Regulations, Title 22), and requirements of the Regional Water Quality Control Board.

2. Plan Approval. Plans for the reclaimed and potable water distribution systems for the parcel shall be reviewed by the Township Manager or his designee and a field inspection conducted before the permit is granted.

3. Permit Issuance. Upon approval of plans, the permit shall be issued. Reclaimed water shall not be supplied to a property until inspection by the Township Manager or his designee determines that the applicant is in compliance with the permit conditions.

D. Temporary Use of Potable Water. Upon the approval of the Township Manager or his designee, potable water may be made available temporarily. Before the applicant receives temporary potable water, a water reclamation permit must be obtained for new on-site distribution facilities. Prior to commencement of reclaimed water service, an inspection of the on-site facilities will be conducted to verify that the facilities have been maintained and are in compliance with the reclaimed water permit and current requirements for service. Upon verification of compliance, reclaimed water shall be served to the parcel for the intended use. If the facilities are not in compliance, the applicant shall be notified of the corrective actions necessary and shall have at least 30 days to take such actions.

E. Reclaimed Water Rate. The rate charged for reclaimed water shall be established by resolution of the Township.

Environmental Mine Site Assessment for Iron Mountain Mine, California

Katie Walraven, J&D Environmental Solutions, LLC

February 22, 2006

Executive Summary

Iron Mountain Mine is positioned in the Shasta Mining District near Redding , California . It has been mined for iron, silver, gold, copper, zinc, and pyrite during its operation from 1860 to 1963. The site was declared a Superfund site in 1983 by the Environmental Protection Agency (EPA) and has undergone remediation projects including the construction of water treatment plants, diversion of surface water, and cappings. The mine is a massive sulfide deposit set in a rhyolitic country rock. Oxidation of iron sulfides at Iron Mountain Mine releases sulphuric acid fumes into the air and adds an unknown amount of contamination into sediments. Tons of acid mine drainage seeped into both surface water and groundwater. The lowest pH in the world of negative 3.6 was recorded at the Richmond mine on the Iron Mountain Mine site. Local fish species and residents have been affected by the contamination of the water, resulting in much litigation. Future remediation of the site is pending while studies are being conducted on sediments and continued water treatment options by the EPA.

Introduction

Iron Mountain Mine is located in northern California , in the Shasta Mining District (Figure 1). The nearest city is Redding, which is 9 kilometers to the southeast of the mine site (Banfield 2004) . The site is located in the Klamath Mountains, which stretch from northwest California to southern Oregon (Banfield 2004) .

Iron Mountain Mine was operational from 1860 to 1963. During those years it was mined for iron, silver, gold, copper, zinc, and pyrite (Banfield 2004) . At one time, Iron Mountain Mine was the largest copper producer in California and the sixth largest copper producer in the United States (Nordstrom, Alpers et al. 1999) . Mining included both surface pit mining and underground mining. The mining of a gossan cap began in 1879 and the underground mining for copper started in 1897 (Nordstrom, Alpers et al. 1999) . The mountain itself was fractured during the course of the mining process, which allowed for the weathering of materials inside the mountain (Nordstrom, Alpers et al. 1999) .

Iron Mountain Mine was declared a Superfund site by the Environmental Protection Agency (EPA) in 1983 (Merchant 2004) . Table 1 shows an environmental and historical account of the site. From 1988 to 1994 emergency remediation of the waste water at Iron Mountain Mine was conducted using a lime neutralization treatment plant (Sugarek 2005) . An acid neutralization plant utilizing a lime and sulfide High Density Sludge process was also built (U.S.G.S. 2005) . Water treatment plants were later made for water with sources at Boulder Creek and Old Mine/Mine No. 8, both located on Iron Mountain (Sugarek 2005) . The treatment plants currently in place on the Iron Mountain Mine site have been operating since 1994 (Merchant 2004) . Since the beginning of water treatment at the site through 2003, over 1.3 billion gallons of acid mine drainage (AMD) have been treated (Merchant 2004) . The treatment has resulted in an 80% reduction of the copper content in the water, and a 90% reduction in the zinc concentration (Merchant 2004) . As of the completion of the Slickrock Creek Retention Reservoir in 2002, more than 95% of all acid mine drainage no longer enters the environment (Merchant 2004) .

Spring Creek Debris Dam is completed, regulating outflow of acid mine waters to the Sacramento River

1983

Iron Mountain listed on National Priorities List (NPL) for EPA Superfund, ranking as the third-largest polluter in the State of California

1986-1998

Four Records of Decision by EPA have instituted several remedial activities that include partial capping, surface-water diversions, tailings removal, and lime neutralization of the most acidic, metal-rich flows, reducing copper and zinc loads by 80-90%

Additional remediation also included water management strategies of capping and diverting the surface water (Sugarek 2005) . AMD solutions are stored at Keswick Reservoir and are periodically scheduled to be released at the same time as waters from the Shasta Dam, in order to dilute the contaminated water. At times of heavy rain or when the Spring Creek Reservoir reaches capacity, the AMD at the Spring Creek Dam is sometimes uncontrollably spilled into the rest of the waters in the area without the extra dilution from the Shasta Dam waters (Sugarek 2005) .

Site Description

The Iron Mountain Mine site contains open pit mines, underground workings, waste rock dumps, and piles of ore tailings (Banfield 2004) , covering 4,400 acres (Merchant 2004) . There were no site maps of the actual site available for inclusion in this paper. Only one site map has been located, and the publication is not available for public perusal from the internet. The site itself is a massive hydrothermal sulfide deposit (Banfield 2004) set in Balaklala rhyolite overlying Copley greenstone (Nordstrom, Alpers et al. 1999) . The sulfide deposit, Balaklala rhyolite, and Copley greenstone are all Devonian in age (Nordstrom, Alpers et al. 1999) . Pyrite makes up more than 95% of the sulfide deposit, with chalcopyrite, quartz and sphalerite (Nordstrom, Alpers et al. 1999) . The pyrite, when oxidized, releases copper, cadmium, and zinc metals.

The extensive watershed surrounding Iron Mountain eventually extends to San Francisco , California . Boulder Creek to the north of the Iron Mountain Mine and Slickrock Creek to the south join and flow southeast 3 kilometers to Spring Creek (Figure 1). Spring Creek then flows seven more kilometers before reaching the Spring Creek Reservoir, where water travels through the Spring Creek Dam and continues on to the Keswick Reservoir. The Keswick Reservoir is on the Sacramento River, which eventually leads to the San Francisco Bay 360 kilometers away (NOAA 1989) .

Site Impacts

Iron Mountain Mine's impacts on the surrounding environment were previously tremendous on water and the culture, but through remediation efforts the contamination is limited now predominantly to sediments. The only air impact, onsite or offsite, mentioned in published reports was the premature death of trees on the mountain due to sulphuric acid fumes from the oxidized pyrite (NOAA Central Library 2002) . Further air impacts existed before the early 1900s because smelting of the ore was done onsite, but after 1907 the ore was shipped off the site for smelting (Nordstrom and Alpers 1998) .

No onsite analysis of sediments was available. However, Table 2 presents a table of sediment metal concentration offsite as compared to the calculated chronic daily intake. The focus of the sediment report was on offsite impacts, such as at the Spring Creek Arm of the watershed. The report documented sediment accumulation in the Spring Creek Reservoir and Keswick Reservoir, but provided no data for exactly how the sediment came to rest in the reservoirs or the quantitative elevation and slope of the mountain (U.S.G.S. 2005) . The mountain was visually described as steeply sloped, with ridges and narrow valleys (NOAA 1989) . The contaminated sediments affect both riparian vegetation and wildlife (EPA 2004) . One study showed that the toxicity of the sediments was due not to the increased presence of copper or zinc, but reduced iron in pore waters (U.S.G.S. 2005) . No information about background metal concentrations at Iron Mountain Mine was found.

While contaminated sediments are added to “clean” water when they are released from the Keswick Reservoir, the concern for the continuation of toxic material overflow from the Spring Creek Dam into the Keswick Reservoir and thereby the Sacramento River is still prevalent (Sugarek 2005) . Every 4 to 8 years the water at the Spring Creek Dam overflows, bringing the contaminated sediments further into the watershed (EPA 2004) . Recreational use has been limited due to both contamination and remediation, and Iron Mountain Mine and the surrounding area are currently being investigated for future uses including biking, hiking, and equestrian trails (Iron Mountain Mine Trustee Council 2002) .

Water quality from Iron Mountain Mine was very poor. Iron Mountain Mine boasts the world's lowest pH, with the lowest recording at negative 3.6 from water at the Richmond mine (Nordstrom, Alpers et al. 1999) . This low pH is not common on Iron Mountain , but a pH of around 1 is generally recorded onsite. Table 3 shows the pH and potential contaminant concentrations from the Richmond mine in 2002. The groundwater which feeds into Boulder Creek had a pH of 2.9 (Hannula, Esposito et al. 2003) . Boulder Creek flows 34 m 3 /h to 79,500 m 3 /h during flash floods (Keith, Runnells et al. 2001) . Rainfall is also a conduit for contaminants, and between 140 and 200 centimeters fall per year, varying with elevation (Keith, Runnells et al. 2001) . Over 1 ton of acid mine drainage had been released every day from Iron Mountain Mine before its Superfund listing in 1983 (Merchant 2004) , aided in large part by the stream flow and rainfall. Native metal concentrations in the water around Iron Mountain Mine were not presented in any publications read for this assessment.

Offsite, however, the EPA reports very little water contamination as of 2004 (EPA 2004) . The only possible human health risks would be in case of incidental ingestion or dermal contact with the water or sediments in Spring Creek (EPA 2004) . From the 2004 EPA Record of Decision report, it seemed as if the offsite contamination was generally held in check in regards to the human population.

Cultural impact from Iron Mountain Mine is the primary grounds for litigation involving the site (Merchant 2004) . The toxic metals which have been leaching from the mine since the 1860s infected the water and sediments, thereby affecting aquatic life. Fish kills were reported as early as the 1899-1900 rainy season (Iron Mountain Mine Trustee Council 2002) . Since 1940, over thirty-nine fish kills have been reported in the area (Iron Mountain Mine Trustee Council 2002) . The Central Valley Chinook salmon population was listed as endangered under the California Endangered Species Act in 1989 and the area between Keswick Dam and the Red Bluff Dam on the Sacramento River was declared a critical spawning area (Iron Mountain Mine Trustee Council 2002) . The steelhead trout population was also affected by increased metal concentrations in the water system (Sugarek 2005) . The fishing industries in the area cannot resume full functioning capacity until the site has been fully remediated and the fish population is sustained.

.

Known Site Management Plans

In 2000, the EPA settled litigation for the amount of $160 million to continue remediation on the Iron Mountain Mine site (Merchant 2004) . The money will ensure the continued upkeep of the water treatment plant for an indefinite period of time, presumably as long as Iron Mountain Mine needs remediation. Overall, an estimated $700 to $800 million will be spent on the project (Merchant 2004) .

Future remediation possibilities are still being investigated. A major component of the continued remediation is the completion of studies by the EPA which focuses on the area sources of AMD discharge, as well as the extent of the sediment contamination in the area (Iron Mountain Mine Trustee Council 2002) . Such studies would be taken into consideration before more remediation was implemented. Earlier during remediation research a study on the effects of mine shaft plugging at Iron Mountain Mine resulted in the disregarding of that particular project (U.S.G.S. 2005) . In 2004 a remedy was proposed for the contaminated sediment issue, involving the movement of contaminated sediment which had collected near Spring Creek into the abandoned open pit mines at Iron Mountain Mine. The sediments most in danger of erosion would be moved first. Pending the completion of further studies of the site, no additional remediation has been planned.

Summary

The remediation projects at Iron Mountain Mine were a good beginning to the control over AMD release into the environment. There are approximately 12 million tons of deposit, disturbed by the mining, still on the mountain (EPA 2004) . This ore, left exposed to the air and water at the Iron Mountain Mine site, is enough for AMD to continue for approximately 3,000 more years (Banfield 2004) . Despite reports from the Richmond mine at Iron Mountain Mine, where water records the lowest pH in the world at negative 3.6 (Nordstrom, Alpers et al. 1999) , the EPA in its 2004 Record of Decision declared offsite water quality to be no danger to the human population (EPA 2004), but provided no quantitative data to support this decision. The impact on the environment of Iron Mountain Mine is most clearly seen in the aquatic life and vegetation in and around the site and continues to affect the area leading to the Sacramento River . One group of salmon is listed as an endangered species because of the movement of contaminated sediments from the Iron Mountain Mine site (Iron Mountain Mine Trustee Council 2002) .

It is recommended, based on data collected for this assessment, that no additional funding be given for the remediation of Iron Mountain Mine. If remediation efforts until 2004 continue and remediation recommended in 2004 is implemented, there should be no reason for further funds to be provided. As of 2004, there were no outstanding dangers to the humans around Iron Mountain Mine, and while the environment and aquatic life are important, they are secondary to the human health concerns at mine sites elsewhere in the United States .

Nordstrom, D. K. and C. N. Alpers (1998). Negative pH, efflorescent mineralogy, and consequence for environmental restoration at the Iron Mountain Superfund site, California . National Academy of Sciences colloquium "Geology, Mineralogy, and Human Welfare", Irvine, California, Proceedings of the National Academy of Sciences of the United States of America.

USGS. (2005). "Remediating some of the world's most acidic waters at the Iron Mountain Superfund site - a tough challenge for scientists." Toxic Substances Hydrology Program , from http://toxics.usgs.gov/topics/rem_act/iron_mountain.html.

Iron Mountain Mine

Redding , California

Region 9

CAD980498612

Site Exposure Potential

Iron Mountain Mine is 14.5 km northwest of Redding , California in the foothills of the

Under Executive Order 13148, revised April 26, 2000 (65 FR 24599), all Federal facilities are required to comply with the provisions set forth in section 313 of EPCRA and section 6607 of the PPA. Federal facilities are required to comply with those provisions without regard to SIC or NAICS delineations.

Potentially affected categories and entities may include, but are not limited to:

SIC major group codes 10 (except 1011, 1081, and 1094), 12 (except 1241), or 20 through 39; industry codes 4911, 4931, or 4939 (limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce); or 4953 (limited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 et. seq. ), or 5169, or 5171, or 7389 (limited to facilities primarily engaged in solvent recovery services on a contract or fee basis). Federal facilities.

This table is not intended to be entities not listed in the table could also applicability criteria in part 372, subpart exhaustive, but rather provides a guide be affected. To determine whether your B of Title 40 of the Code of Federal for readers regarding entities likely to be facility is affected by this action, you Regulations. If you have any questions affected by this action. Other types of should carefully examine the regarding the applicability of this action

Brief History of EPA's Debarment Program

EPA's Debarment Program officially began in 1982 in response to Congressional oversight hearings that revealed Government-wide inadequacies in the management of Federal contracts and assistance with regard to waste, fraud, abuse and poor performance. On the basis of those hearings, and subsequent task force studies conducted by the President's Council on Integrity and Efficiency (PCIE), the Office of Management and Budget developed a comprehensive Government-wide debarment and suspension system for all Federal contracts, assistance, loans and benefits extended by Executive-Branch agencies.

EPA, as an Executive Branch agency, is part of that Government-wide system. In addition to its discretionary authority to debar pursuant the above, it also has mandatory debarment authority under Section 306 of the Clean Air Act, and Section 508 of the Clean Water Act.

As a result of the historical development of the Agency, these various debarment authorities were, in 1982, located in three locations. The statutory debarment was initially administered by various offices, but eventually was delegated to the Office of Enforcement (OE). Procurement debarment was administered by the then, Procurement and Contracts Management Division, while assistance debarment was administered by the Grants Administration Division.

In 1982, the Office of Administration and Resource Management (OARM) consolidated all EPA discretionary procurement and assistance debarment authority into the Grants Administration Division. In the early 1990s, the Agency further consolidated its debarment authority when OARM assumed the responsibilities for statutory debarment from OE. Today, all EPA discretionary and statutory debarment authority is delegated to the Assistant Administrator for OARM and carried out by the Office of Grants and Debarment (OGD).

The EPA Debarring Official is the Agency's national program manager. As such the EPA Debarring Official establishes the Agency's debarment policy, and is the decision official for all suspension and debarment actions before the Agency.

The Suspension and Debarment Division (SDD) interacts with EPA program offices, the Office of the Inspector General, Department of Justice, and with Federal, state and local agencies, to develop matters for consideration by the EPA Debarring Official.

Iron Mountain Mine
An example of an extreme application of treatment technology failing to meet
prescribed numeric effluent limits, is the large Iron Mountain Mine complex (IMM)
northwest of Redding. Prior to remedial activities, the mine discharged
approximately 650 pounds of copper and 1,800 pounds of zinc daily into the
Sacramento River. The site was placed on the National Priorities List and
remedial activities implemented by the U.S. EPA under the Federal Superfund
program. Remedial activities have included surface water diversions, waste rock
disposal, and treatment of the AMD. The treatment facility constructed by U.S.
EPA uses lime neutralization to precipitate copper, cadmium, and zinc from
solution and is considered to be the Best Available Technology. Over 200 million
dollars has been spent on the site with an additional 700 million available for
future operations of the AMD conveyance and treatment system. The treatment
plant cost over 30 million to build and O&M costs range between 5 and 7 million
dollars per year depending on precipitation which affects the generation of AMD.
The treatment system is designed to treat a maximum of 8,000 gpm during
extreme storm periods. Unless some other technology is developed in the future,
treatment will be required for an estimated 2,000 years. Overall discharges of
metals (copper, zinc and cadmium) to the Sacramento River have been reduced
by 95 percent. Despite these enormous efforts, the effluent from the treatment
plant cannot meet water quality objectives for cadmium and zinc, or objectives for
sulfates, aluminum, iron and other metals. Further, the streams adjacent or
immediately downstream from IMM, including lower Spring Creek and Bolder
Creek, will never support a typical aquatic community due to the contribution of
non-point sources that cannot be controlled. Any aquatic organisms that do live
in these watercourses are limited to algae and invertebrates that are adapted to a
low pH and high metal environment. Fish will never exist in these streams.

Owners of Abandoned Mines Are Not Being Treated Equally
The SIP and the requirement for numeric effluent limits does not allow for a level
playing field for all owners of abandoned mines. Similar to the U.S EPA when
dealing with Superfund sites like IMM, Federal Land Agencies (Forest Service and Bureau of Land Management) claim they can also remediate their sites
under the Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA). Under CERCLA, Superfund sites are not required to get an
NPDES permit or any other permit from the Regional Water Board. In place,
they can request the State provide them with applicable, relevant and appropriate
requirements (ARARs). While the SIP and the Basin Plan are considered
ARARs, if the U.S. EPA under Superfund, believes it is not practical to achieve,
they can waive the ARAR on an interim basis, a relatively easy process. A
permanent waiver can also be sought. Even where the ARAR is waived, the
cleanup can incorporate the BMP approach described above.
Federal landowners claim the same exemption applies to all federal facilities in
all cases, whether or not the sites are on the NPL (Superfund list) and whether or
not any remediation is undergoing or actually planned.2 Thus, many years may
pass before a Federal Agency will even begin to address a site. Enforcement
against a Federal Agency for failing to initiate or complete remedial activities at a
site under these conditions is resource-intensive, legally complex and time
consuming.
In contrast, a private owner of an abandoned mine discharging AMD to surface
waters may be held to the strict standards of the SIP, including impossible to
meet time schedules and numeric effluent limits. If a numeric effluent limit is
exceeded, then MMPs are required, rapidly draining the financial resources of
the private owner attempting to comply with what may be an impossible task.

“When extraction of the ore was suspended from the various stopes above the Lawson, the ground was invery bad shape, and the condition as regards heat andgas were so terrible that it seemed advisible to abandon any attempt to work from that level. In fact it was a case of walking away and leaving the job for the next generation”WM.F. Kett, General Manager August 23, 1944